( 1 ) IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD CIVIL APPLICATION NO. 8524 OF 2009 WITH REVIEW APPLICATION (ST.) NO. 8958 OF 2009 IN SECOND APPEAL NO. 539 OF 1989 Gangadhar s/o Vithal Kale APPLICANT VERSUS Shyamlal s/o Bhikachand Rathod Since deceased, by L.Rs. Smt. Kunwardevi w/o Shyamlal Rathod and others. RESPONDENTS ..... Mr. M.V. Deshpande, advocate holding for Mr. V.D. Patnoorkar, advocate for the applicant. Mr. V.C. Solshe, advocate holding for Mr. C.G. Solshe, advocate for respondents No. 1 to 5. ..... [CORAM : V.R. KINGAONKAR, J.] [DATE : 12th January, 2010] PER COURT : 1. These applications are for condonation of delay in filing of the review application and the review application whereby the applicant seeks review of the judgement dated 26th November, 2008. ( 2 ) 2. Heard counsel. 3. So far as condonation of delay is concerned, it appears that there is delay of 116 days in filing the review application. The applicant has given explanation regarding the delay. The delay appears to be unintentional. The explanation stated by the applicant is accepted and the delay is condoned. The civil application is accordingly allowed. 4. Coming to the application for the review of earlier judgement, it may be noted that the chief ground raised by the applicant is that the applicant is a transferee and was in possession of the suit property which he can protect under section 53-A of the Transfer of Property Act in a suit filed by the owner, but it was not so necessary to raise the issue regarding his willingness and readiness to perform the remaining part of the agreement as against the claim put forth by the subsequent transferee. 5. It is argued by learned counsel for the ( 3 ) applicant that when there was competing claims between the two transferees, the applicant had no reason to set out an issue about his willingness and readiness to perform the part of agreement because the deceased respondent was a subsequent purchaser from the same vendor. It is argued by the learned counsel that considering purport of section 12 of the Specific Relief Act, the applicant was not required to make out a case qua the deceased respondent, in respect of his readiness and willingness to perform his part of the agreement. 6. Whether plea of part performance under section 53-A of the Transfer of Property Act is required to be specifically raised and proved even against subsequent purchaser is the question of significance. The deceased respondent purchased the suit property at subsequent date and filed suit for recovery of possession. A plain reading of section 53-A of the Transfer of Property Act would make it manifest that the plea can be raised not only against the owner but also against the transferee. The expression used in section 53-A viz. “the transferor or any person claiming under him shall be debarred from ( 4 ) enforcing against the transferee and persons claiming under him any right in respect of the property of which the transferee has taken or continued in possession” covers the claim for protection by any person claiming under the transferee who was entitled to seek such protection as well as the claim of any person who has derived rights from the transferor. Obviously, the protective relief is available against the subsequent purchaser. In other words, plea of protection under section 53-A could be raised even against the deceased respondent, he being the person claiming under the original owner i.e. Maneji @ Manika s/o Dattaram. The application under section 53-A is not restricted to the defence available only against vendor but is also available against any person claiming through the vendor. There is no relevance of section 12 of the Specific Relief Act which only deals with the nature of contracts which can be specifically enforced. Considering these aspects, when it is found that the applicant was unsuccessful in making out a case to obtain protection under section 53-A of the Transfer of Property Act, there is no substantial reason to review ( 5 ) the judgement rendered by this Court. The review jurisdiction cannot be usurped as if it is substitution of appellate jurisdiction. 7. In the result, the application for review of the judgement is dismissed. No costs. 8. In view of dismissal of the review application, civil application No. 9525/2009, for stay, does not survive and hence, stands dismissed accordingly. [ V.R. KINGAONKAR ] JUDGE NPJ/ca8524-09