JUDGMENT :

PRAYER:- Civil Miscellaneous Appeal filed under Order 43 Rule 1(ja) of C.P.C. to set aside the decreetal order dated 29.04.2016 passed in E.A.No.105 of 2011 in E.P.No.12 of 2009 in O.S.No.10 of 2008 on the file of the Principal District Judge, Tirunelveli.

The above appeal has been filed by a third party to the suit in O.S.No.10 of 2008 on the file of the Principal District Court, Tirunelveli challenging the dismissal of his application under Order 21 Rule 101 of C.P.C seeking to deliver possession of the suit schedule property.

Factual Matrix:

2. Admittedly one V.Velladurai is the owner of the suit schedule property. It is alleged by the plaintiff/Muneeswaran that the said Velladurai had executed a registered sale agreement on 13.08.2002 in his favour for a sale consideration of Rs.9,00,000/-. Alleging non performance of the said sale agreement, the suit for specific performance was filed by Muneeswaran on 29.01.2008 in O.S.No.10 of 2008 for the relief of specific performance.

3. The defendant had remained exparte and an ex-parte decree was passed on 09.09.2008. The plaintiff had filed E.P.No.12 of 2009 for execution of the sale deed and the judgement debtor had remained exparte and the sale deed was executed by the Court. Thereafter, the plaintiff had filed E.A.No.152 of 2010 for taking delivery of the property in which the judgement debtor had remained ex-parte and an order of delivery was passed. According to the plaintiff, the delivery was taken on 15.09.2010.

4. The present appellant who is the third party to the said suit had filed E.A.No.105 of 2011 under Order 21 Rule 101 of C.P.C seeking repossession of the property from the decree holder. The said application was dismissed by the Executing Court. Challenging the same, present appeal has been filed.

5.Contentions of the learned counsel appearing for the appellant

(i). The original owner of the property namely Velladurai had executed a registered general power of attorney in favour of Irulappa Thevar who is the father of the appellant on 24.10.2002. Thereafter, on 24.03.2003, a cash receipt was issued by Velladurai in favour of Irulappa Thevar referring to a sale agreement. Based upon the said sale agreement, Irulappa Thevar had satisfied the money decree suffered by Velladurai in O.S.Nos.77 and 78 of 2005 on the file of the District Munsif Court, Sivagiri.

(ii). On 10.01.2007 an unregistered sale agreement was executed by the said Velladurai in favour of Irulappa Thevar. On 26.01.2008 based upon the power of attorney dated 24.10.2002, the said Irulappa Thevar had executed a sale deed in favour of his son namely Prithiviraj on 26.01.2008. The said sale deed was registered on 05.02.2008.

(iii). The suit for specific performance was filed by the agreement holder namely Muneeswaran only on 29.01.2008. Even before the said date, a sale deed has been executed by the said Irulappa Thevar in favour of the present appellant. Therefore, the registration of the sale deed relates back to the date of execution namely 26.01.2008.

(iv). In view of Section 47 of the Registration Act, whenever a sale deed is registered, it relates back to the date of execution of the sale deed. Therefore, it should be construed that the sale deed was executed even prior to the filing of the suit for specific performance. The suit for specific performance has been filed without impleading the appellant herein and therefore, the decree is not executable.

(v). The learned counsel for the appellant had further contended that the possession of the property was handed over to the father of the appellant on 24.03.2003 itself. There is a registered power deed in favour of the father of the appellant on 24.10.2002. Without verifying the said document, the decree holder has purchased the property and hence, he cannot be considered to be a bonafide purchaser for valuable consideration.

(vi). The possession of the property originally was with appellant's father and later, the appellant has taken possession of the