The main legal point established in the judgment is the maintainability of an application under Order 21 Rule 99 CPC, the requirement of a registered agreement for claiming benefits under Section 53A of the Transfer of Property Act, and the appealability of an order under Rule 99 of Order 21 CPC.

The second appeal is against the judgment and decree in A.S.No.41 of 2015 on the file of the Additional District Judge-I, Mavelikkara. The matter came up before the lower appellate court from an order passed by the executing court on E.A.No.181 of 2014 in E.P.No.252 of 2012 in O.S.No.3 of 2012. The suit was one for specific performance of an agreement. The appellant filed a petition under Section Order 21 Rule 99 and Rule 104 CPC r/w Section 47 CPC.

2. Heard the learned counsel for the appellant and learned counsel for the contesting respondent.

3. The specific questions of law put forward by the appellant are thus:

(i) Whether the lower appellate court is legally justified in holding that an application under Order 21 Rule 99 CPC is maintainable only after the person in possession was dispossessed?

(ii) Whether the lower appellate court is legally justified in holding that appeal is not maintainable since adjudication under Order 21 Rule 100 CPC takes place only on an application filed by a person who is dispossessed in execution of a decree.

4. The relevant facts admitted by both sides are as follows: The contesting respondent obtained a decree for specific performance of a contract against the other respondent in this proceedings. Pursuant to the decree, a sale deed was also executed in the name of the contesting respondent through the intervention of the trial court. When that property was sought to be taken delivery of, the appellant resisted and came forward with a petition under Order 21 Rule 99 and Rule 104 CPC and also under Section 47 CPC. That matter was considered by the trial court at length. The contention raised by the appellant in the petition is that she was put in possession of the property by the second respondent in this appeal by virtue of an agreement to sell after receiving more than Rs.4 lakhs towards the consideration. It is her case that she keeps possession of the property in part performance of the contract and she is entitled to get the protection under Section 53A of Transfer of Property Act (in short 'the TP Act'). Executing court noticed that no agreement was produced by the appellant to substantiate her contention. More over, the agreement alleged to have been executed by the second respondent in this appeal in favour of the appellant was in the year 2011. Admittedly, it was not a registered agreement to assign. On account of the amendment to Section 53A of TP Act and section 17 of the Registration Act, the appellant is legally precluded from claiming any right under Section 53 A of TP Act by raising a claim that she was put in possession and keeps the same by virtue of part performance. This contention was repelled by the executing court. The matter was taken up to the lower appellate court. The lower appellate court dismissed the appeal mainly for two reasons. Firstly, the appellant could not have taken recourse to a proceeding under Order 21 Rule 99 CPC before she was dispossessed from the property. Second reason stated by the lower appellate court is that as the application itself was not maintainable and the appeal was also incompetent.

5. Order 21 Rule 99 CPC reads as follows: Dispossession by decree-holder or purchaser:-(1) Where any person other than the judgment-debtor is dispossessed of immovable property by the holder of a decree for the possession of such property or, where such property has been sold in execution of a decree by the purchaser thereof, he may make an application to the Court complaining of such dispossession. (2) Where any such application is made, the Court shall proceed to adjudicate upon the application in accordance with the provisions herein contained.

6. Learned counsel for the appellant placed reliance on a decision of the Supreme Court in Brahmdeo Chaudhary v. Rishikesh Prasad Jaiswal and Another (AIR 1997 SC 856). The following observations in the said decision are relied on by the court below:

“Once such an obstruction is one the record of the Executing C