JUDGMENT - (1) This appeal raises an interesting question of law namely whether the person who has obtained property on the basis of a contract of sale can maintaina suit against an auction purchaser of the same property. The material facts briefly stated are as follows;

(2) The suit property (i.e survey Nos. 162 and 177) (half share) originally belonged to defendant No. 3 and two others. On 12-4-1949 defendant No. 3 and two others entered into an agreement for selling the said property to the plaintiff for a sum of Rs. 1,600/- Part of the sale price i.e. Rs. 585/- was paid on the date of agrteement and the plaintiff was put inpossession of the property. In the month of May, 1949, defendant No. 2 obtained a decree against defendant No. 3 In execution of the said decree, the land in suit was sold inauction and purchased by Deft. No. 1, Deft. No. 1 started proceedings for recovering possession of the property on the basis of the sale certificate. The plaintiff obstructed the delivery of possession. proceedings were started by the auction purchaser for removing the obtruction under Rule 99 of order 21 of the Code of Civil Procedure. After summary enquiry, the Court came to the conclusion that the plaintiff was not entitled to continue in possession. The Court therefore directed him to remove his obstruction. On 2-4-52, the plaintiff filed a suit under Rule 103 of ordeer 21 of the C. P. C. contending that he was a transferee under a contract of sale; that he was in possession of the property by virtue of that contract of sale; and that therefore he was entitled to protect his possession under Section 53A of the Transfer of Property Act.

(3) Deft. No. 3 did not appear and the suit proceeded ex parte against her. Defts. 1 and 2 contended that the plaintiff cannot maintain any action for the enforement of his claim under Section 53A of the T. P. Act. The trial Court dismissed the plaintiffs suit. The plaintiff went in appeal to the District Court. The District Court allowed the appeal and decreed the plaintiffs claim. It is against that judgment the defendants Nos. 1 and 2 have now come up in appeal.

(4) Mr. Guttal for defts. 1 and 2 urged two contentions before me. Firstly that the plaintiff who bases his claim on the doctrine of part performance of the contract, embodied in Section 53A cannot maintain an action for protecting his possession. At best he can use the part performance of the contract as a shield. He can never use it as a weapon of offence. Secondly it is argued that neither the judgment creditor (deft. 2) nor the the auction purchaser (deft. No. 1) could be said to be claiming under defendant No. 3, the judgment debtor. It is only the transferor or persons claiming under him who are debarrred from proceeding to evict the transferee claiming under a contract of sale. Mr. Guttal contended that since the auction purchaser could not be said to have derived title from the judgment debtos, the bar imposed by Section 53A cannot apply to him.

(5) On the other hand Mr. Pathak maintains that a suit under Rule 103 of Order 21` of the C. P. C. is in the nature of a defensive action. Therefore when the plaintiff maintains an action under Rule 103, he is resisting, insubstance, the claim of the auction purchaser to evict him on the basis of the auctin sale. In regard to the second point, Mr. Pathak argues that in a broader sense the auction purchaser must be treated as claiming from the transferor within the meaning of that expression in Section 53A of the T. P. Act.

(6) Before considering the authorities cited, it is necessary to refer to the provisions of Section 53A of the T. P. Act itself. The first para of that section runs thus:-

"Where any person contracts to transfer for consideration any immoveable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty; and the transferee has, in part performance of the contract, taken possession of

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