Under challenge is Ext.P5 whereby the court below declined to grant the prayer for symbolic delivery.
2. The petitioner obtained maintenance decree as against the respondent. She put it in execution. The property involved in this proceedings was brought to sale. The property was sold and purchased by the decree holder and she sought for delivery. Sale certificate was also issued. It later turned out that the property is a vested forest as per the report obtained from the DFO. Under such circumstances, the court declined to grant symbolic delivery.
3. Learned counsel appearing for the petitioner points out that the court below erred in law in dismissing the petition and it ought to have granted symbolic delivery. It is contended that only then the petitioner will be able to apply O.P.(C).2648/2014. 2 before the Forest Tribunal to get exemption. It is also contended that the finding of the court below that as per Section 8 of the Transfer of Property Act, on the very date of assignment all rights vests with the transferor will stand transferred to the transferee and the decision now taken is not correct.
4. What is sold in court auction is the right of the judgment debtor over the property. If the judgment at that point of time had no right, nothing would be sold and consequently possession also cannot be transferred. As things now stand, it is seen that the property is notified as a private forest. If that be so, the transferor did not have any marketable title and the question of symbolic delivery does not arise for consideration. At a later stage if the petitioner is able to get exemption from the Forest Tribunal, the petitioner is at liberty to pursue such remedies as are available to him.
O.P.(C).2648/2014. 3 There is no merit in this petition and it is dismissed.
P. BHAVADASAN, JUDGE sb.