Null and void can be challenged at the execution stage.

This Civil Misc. Appeal is against the dismissal order dated 12-1-1990 in E.A. No. 4250 of 1986 in E.P. No. 523 of 1986 in O.S. No. 3244 of 1983 on the file of the Assistant Judge, City Civil Court, Madras. In the said suit in C.S. No.3244 of 1983 the first respondent obtained ex parte decree on 23-3-1984 for a specific performance of Ex.A.58 sale agreement dated 25-10-1982 executed in favour of the first respondent for a sale consideration of Rs. 48, 125/-. The said Ex. A.58 was by the second respondent, the mother, and her children, the respondents 3 to 8.

2. Subsequently to the decree, through E.P. No.2297, 1984 she got the sale deed in her favour and in the abovesaid E.A. No. 523 of 1986 got possession on 7-11-1985 of the property sold, through the court-bailiff. But the appellant has filed the abovesaid E.A. No. 4250 of 1985 under O. 21, R.99 of the Code of Civil Procedure for redelivery of the suit property to her on the ground that she had purchased the said property from the second respondent for Rs. 45, 000/- under the sale deed, Ex. A.12 dated 10-3-1983 itself, even prior to filing of the abovesaid suit on 27-4-1983, that the abovesaid decree could not be executed against her, that the abovesaid decree was not valid and that he could not be dispossessed pursuant to the said decree. The appellant's further plea is that after purchasing the said property under Ex. A.12 he had put up superstructures on the site of the property and was carrying on Iron business under the name and style "S.V. Ramalings Nadar and Company."

3. The Court below has dismissed the said E.A. No.4250 of 1986 on the ground inter alia that the abovesaid sale agreement Ex.A.58 dated 25-10-1982 in favour of the first respondent-decree-holder, was prior to Ex.A.12 sale deed dated 10-3-1983 executed in favour of the appellant and that it could not be held that possession was taken in the said R.P. proceedings from the appellant and consequently a petition under O.21, R.99 of the Code of Civil Procedure would not lie.

4. But the Court below has failed to advert to one important aspect. The main issue is whether depite the abovesaid prior sale agreement Ex.A.68 in favour of the first respondent, the appellant would get valid title to the property in question pursuant to the later sale deed Ex.A.12 in his favour. A decision of a Division Bench of this Court in Veerapalai v. Thadikana 1968 AIR(Mad) 383) held as follows (at page Mad 385) :-

"If a person, as the owner of the property, has entered into an agreement to sell the property, he cannot thereafter convey the same property to any other person, as after the prior agreement of sale, he cannot be said to be a free owner of the property. If he subsequently alienates the property he can alienate if only subject to the rights created under the prior agreement of sale." *

Section 19(b) of the Specific Relief Act, 1963 corresponding to S.27(b) of the Specific Relief Act, 1877, also provides that specific performance of a contract may be enforced against any person claiming under any party to the contract by a title arising subsequent to the contract, except a transferee for sale who has paid his money in good faith and without notice of the original contract. After referring to this provision, the abovesaid decision of the Division Bench of this Court, points out that the plain language of the sub-sec. (b) shows that the subsequent transferee can retain the benefit of his transfer by purchase which, prima facie, he had no right to get, only after satisfying two conditions concurrently viz., (1) he must have paid the full value for which he purchased the property and (2) he must have paid it in good faith and without notice of the prior contract. Further, it was also observed therein that the burden of proof was upon the subsequent purchaser to establish these conditions in order that his rights might prevail over the prior agreement of sale. So the Court below should have taken note of the abovesaid