The court upheld the lower court's decision to grant a decree and direct the defendants to surrender possession of the property to the plaintiffs, finding no substantial question of law to admit the second appeal.

J U D G M E N T

The defendants in O.S.No.43/2012 on the files of Munsiff Court Sulthan Bathery has filed this second appeal under Section 100 r/w Order XLII Rule 1 of the Code of Civil Procedure, 1908 (hereinafter referred to as 'CPC' for short), challenging decree and judgment in the above case which were confirmed by the decree and judgment in AS 30/2020 dated

30.06.2023.

2. Heard the learned counsel for the appellant/ defendant on admission. Perused the verdicts under challenge.

3. In this matter, though it is argued by the learned counsel for the appellant/defendant that, in view of the earlier decree and delivery thereof, the remedy of the plaintiff is under Sec.47 of CPC and therefore the present suit is not maintainable, the Trial Court as well as the appellate Court negatived the contention.

4. In this matter, the plaint schedule property got assigned in favour of the plaintiff by virtue of document NO. 352/1984 of Sulthan Bathery SRO. While the plaintiff had been in the possession and enjoyment of the same, an agreement of sale had been executed in between plaintiff and defendant. Thus, the defendant occupied the plaint Schedule Property and continued possession. At this juncture, the plaintiff filed OS 73/1999 before the Munsiff Court, Kalpetta which was later transferred to Munsiff Court Sulthan Bhathery and re-numbered as OS 279/2011 and the suit was decreed on 30.03.2003. Thereafter the defendants approached Sub Court Sulthan Bathery and filed As No. 25/2005 along with delay petition of 631 days. When the Appellate Court dismissed the appeal, the matter was taken before this Court in RSA 1423/2013. As per the judgment in RSA, this Court set aside the judgment of the Trial Court and remanded the matter to the Trial Court for fresh disposal. The defendant again was set exparte and an exparte decree was passed. IA 1436/2006 was filed to set aside the exparte decree also Was dismissed. By long process, finally the decree was put in execution and as per A9, the delivery report of Amin in EP3/2005, delivery was affected and possession of the property was put back to the hands of plaintiff. The suit was necessitated since the defendants again trespassed into the property and dispossessed the plaintiff.

5. In this matter, it is an admitted fact that, there was a sale agreement in between the plaintiff and defendant. But the sale agreement in no way would confer any right upon the vendee and as per Section 55(6)(b) of the Transfer of Property Act the vendee would get a charge on the immovable property agreed to be sold, so as to realise the advance consideration, if any, paid. Further Section 53A of the T.P Act has also no application in the present case. So, the vendee in a contract of sale can enforce the contract seeking the reliefs of specific performance of contract or return of advance of money and sometimes damages. Apart from the said remedies, vendee has no other right available and protected by law. By the time, all the remedies in view of the sale agreement is hopelessly barred by limitation.

6. In this matter, it is discernible from the judgment of the lower Court that, the defendants raised a contention that there was no physical execution of the decree and the report of the Amin noted as Ext. A9 is incorrect. The defendants also raised a contention that his possession is protected under Sec.53A of the TP Act. In fact, even after execution of the decree in OS No. 279/2001, now also the defendant has been possessing and enjoying the same, after trespassing upon the property and now his status is that of a trespasser, since his possession earlier on the strength of the contract of sale was given a go by Ext.A9 delivery report, effecting delivery in favour of the plaintiff.

7. It is true that Section 47 of CPC would apply in relation to all questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree, s