The main legal point established in the judgment is that Section 53-A of the Transfer of Property Act does not confer any title on the transferee and can only be used in defense, not for attack. The court also clarified the status of an attaching creditor as an auction-purchaser in execution of a money decree.

RAY, C. J.

( 1 ) THE question, involved in this appeal, is whether a plaintiff can avail himself of the benefits of the doctrine of part performance of a contract for sale as against an invasion on his rights by an attaching creditor of the transferor (promisor.) He had objected to the attachment by advancing a claim in Order xxi, Rule 58, Civil Procedure Code. The claim having been rejected he brought the suit, out of which this Second Appeal arises.

( 2 ) THE appeal was heard 'ex parte', and the learned Counsel, appearing on behalf of the appellant No. 1 obtained a decree for costs against them invite our attention to such authorities as could be cited by the respondent had he been represented before us.

( 3 ) THE facts, in short, are that the disputed properties belonged to defendants 2 to 12. Defendant No. 1 obtained a decree for costs against them. After decree, passed on 2-9-1936, the aforesaid defendants separated amongst themselves and the disputed properties fell to the share of defendant No. 2. On 20th september 1937, the latter entered into an agreement for sale with the plaintiff with respect to the disputed properties. In this connexion, it has been found by both the Courts below, that the plaintiff got possession of the properties in partfulfilment of the contract and that he paid the consideration money while he was all along ready and willing to perform his part of the contract. In short, under the law, he is in the situation in which he could pray in aid the doctrine of part performance, as enacted in Section 53-A, Transfer of Property Act, had the transferor wanted to enforce any of his rights to the properties in a suit against him. After the unregistered agreement, defendant No. 1 executed the decree (in Execution Case No. 116/38) and brought the properties under attachment to which the plaintiff took exception unsuccessfully.

( 4 ) AS I have said above, the only point for consideration is whether the plaintiff in this suit can invoke the aid of Section 53-A of the Act. If one looks at the frame of the suit, he can be at once non-suited. In para. 3 of his plaint, after statement of facts, he said: "the plaintiff filed the claim petition claiming the lands 'to be his' by virtue of Section 53-A of the Act, and as the plaintiff was not ready with his witnesses at the time of the hearing, the petition was dismissed for default. This suit is therefore filed to set aside the summary decision in E. A. 17/40 declaring that the right, title and interest in the schedule properties have vested in the plaintiff. " he says: "the plaintiff therefore prays for a decree declaring that the properties described in the schedule filed herewith belong to the plaintiff and for costs of the suit together with such other relief or reliefs as the Court may think fit in such circumstances of the case. "

( 5 ) IT is apparent that mere contract to sell does not create any title to or charge upon the properties agreed to be sold (Vide Section 54, Transfer of Property act.)

( 6 ) THE more liberal view, however, may be taken of the frame of the suit, as one substantially under Order XXI, Rule 63, Code of Civil Procedure, Section 53-A is reproduced for easy reference: "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 the property or any part thereof, or the transferee, being already in possession, continues in possession in part performance of the contract and has done some act in furtherance of the contract; and the transferee has performed or is willing to perform his part of the contract; "then notwithstanding that the contract, though required to be registered, or, where there is an instrument of transfer, that the transfer has not been completed in the manner prescribed theref