An unregistered agreement does not invalidate a court's jurisdiction or enforceability of a decree under specific performance, provided conditions of the contract and legislation are met.

JUDGMENT

Respondent herein filed a suit for specific performance of Ext.P1 agreement for sale dated 24.07.2002. Petitioner was the defendant. Ext.P2 is copy of the plaint. Petitioner was set exparte, allegedly on account of the negligence of his advocate. Ext.P3 is copy of the judgment passed exparte in favour of the respondent. Thereafter, by invoking Section 28(3) of the Specific Relief Act, 1963 (in short, “the Act”) read with Order XXI Rule 32 and Section 151 of the Code of Civil Procedure, 1908 (in short, “the Code”) the respondent filed Ext.P4 application for getting a sale deed executed through the court as the petitioner did not obey the decree. It is further prayed by the respondent that the property be delivered to him, despite having a recital in Ext.P1 that possession of the property had been handed over to him. Then the petitioner, for the first time, entered the arena of litigation and questioned the executability of the decree. Ext.P5 is the objection filed by the petitioner. He contended that after introducing Section 17(1A) to the Registration Act, 1908 (in short, “Registration Act”)

Ext.P1, an unregistered agreement to assign, cannot confer any right on the respondent to claim the benefit of Section 53A of the Transfer of Property Act, 1882 (in short, “TP Act”). Further, Ext.P1 will not affect his rights in immovable property in view of Section 49 of the Registration Act. It is the grievance of the petitioner that none of these questions were considered by the court below in the correct perspective when Ext.P6 order was passed, permitting the respondent to take symbolic delivery of the property. According to the petitioner, in the given situation, neither actual delivery nor symbolic delivery is possible by virtue of the legal hurdles.

2. Heard the learned counsel appearing for the contestants.

3. Petitioner's counsel vehementally contended that Ext.P2 suit for specific performance of contract, perpetual injunction and other reliefs should have been held not maintainable in law. Ext.P3 judgment is per se unsustainable. The execution proceedings, therefore, is also illegal. Challenge in this proceedings is against Ext.P6 order passed by the trial court on an application under Section 28 of the Act requesting the court to execute a document in favour of the respondent and also to put him in possession of the property.

4. The recitals in Ext.P1 would show that a strip of land, admeasuring 2.5 cents, was agreed to be purchased by the respondent from the petitioner, for using as way, for a price of `15,000/-. The entire amount was paid at the time of execution of Ext.P1. Ext.P1 agreement is admittedly not a registered document.

5. Predominant contentions raised in petitioner's written statement are that he has not executed Ext.P1 agreement and he does not own or possess the land described in the plaint schedule. The petitioner, albeit filing a written statement, did not contest the case and remained absent. Therefore the suit was decreed exparte against him as per Ext.P3 judgment. The operative portion of the judgment reads thus:

“1. The defendant is directed to execute and register sale deed within two months from this date with respect to the plaint schedule property as per Ext.A1, agreement for sale dated 24.07.2002.

2. If the defendant fails to comply direction (1) above the plaintiff can get the sale deed with respect to the plaint schedule property executed in his favour through court for due process of law. 3. The defendant is restrained by decree of permanent prohibitory injunction from intervening with the plaintiff's peaceful enjoyment and possession of the plaint schedule property and from creating, executing or registering any document with respect to the plaint schedule property in favour of any strangers.”

6. Since the petitioner did not discharge his obligations under the agreement and in terms of the decree, the respondent approached the court with an interlocutory application by invoking Section 28 of th