RAJIV SAHAI ENDLAW, J.

1. The plaintiff has sued for specific performance of an agreement to sell dated 25th September, 1992 by the defendant No.1 in favour of the plaintiff with respect to property No. 77 Block B-2, Safdarjang Enclave, New Delhi ad-measuring 265 sq. yds, for total sale consideration of Rs.75 lac. The plaintiff claims to have paid advance sale consideration of Rs.23,51,000/- to the defendant No.1. The defendant No.2 Mrs. Shashi Garg was impleaded as a party to the suit on a application of the plaintiff under Order 1 Rule 10 r/w Order 6 Rule 17 of the CPC on the plea that the defendant No.1 had on 17th October, 1996, after the agreement to sell with the plaintiff executed sale deed of the property in favour of the defendant No.2.

2. The defendant No.1 in spite of service of summons of the suit never appeared and was vide order dated 3rd November, 1998 proceeded against ex-parte and remains ex-parte. The defendant No.2 contested the suit by filing a written statement. It is inter-alia the case of the defendant No.2 that the mother of the defendant No.1 Smt. Kaushalya Devi had entered into an agreement dated 13th June, 1986 to sell the property to the defendant No.2; the defendant No.1 had also confirmed and ratified the said agreement on 29th May, 1987; however the defendant No.1 and his mother failed to abide by the agreement leading to the institution of suit No.1989/1990 in this court by the defendant No.2 against the defendant No.1 and his mother for specific performance of the said agreement to sell; that in the said suit for specific performance, on 7th October, 1996 a compromise was arrived at whereunder the defendant No.1 agreed to honour the agreement to sell in favour of the defendant No.2 and which compromise was accepted by this court on 9th October, 1996 and in terms whereof the suit No.1989/1990 (Supra) was decreed. On the said pleadings of the defendant No.2 the following issues were framed on 5th September, 2000:-

1. Whether the plaintiff is entitled for decree of specific performance as prayed for in the suit? OPP

2. Whether plaintiff is ready and willing to perform his obligations under the Act? OPP

3. Whether defendant No.1 had agreed to sell property to defendant No.2 prior to agreement to sell dated 25.09.1992? OPP

4. Whether the suit of the plaintiff is not maintainable in view of the decree dated 09.10.1996 in suit No.1989/90 and sale deed dated 17.10.1996? OPD

5. Relief.

3. The defendant No.2 also subsequently stopped appearing and was vide order dated 8th August, 2008 ordered to be proceeded against ex-parte. The plaintiff has led ex-parte evidence of her husband Mr. Moti Nankani, who has filed his affidavit by way of examination in chief as Exhibit PW1/A.

4. Section 19 (a)&(b) of the Specific Relief Act, 1963 provided as under:-

“19 Relief against parties and persons claiming under them by subsequent title - Except as otherwise provided by this chapter, specific performance of a contract may be enforced against –

a. either party thereto;

b. any other person claiming under him by a title arising subsequently to the contract, except transferee for value who has paid his money in good faith and without notice of the original contract”

5. It follows from the above that even though the defendant No.2 is not a party to the agreement of which specific performance is claimed by the plaintiff, if the title to the property in favour of the defendant No.2 has passed subsequent to the agreement to sell with the plaintiff, specific performance can be enforce against the defendant No.2 also. In the present case, it is the admitted position that the title has passed to the defendant No.2 vide sale deed dated 17th October,

2006 i.e. on a date subsequent to the agreement to sell dated 25th September, 1992 by the defendant No.1 in favour of the plaintiff.

6. However, the matter does not rest at that. Though the title has been conveyed by the defendant No.1 to the defenda