Full Judgment Text
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CASE NO.:
Appeal (civil) 3307 of 1983
PETITIONER:
GURJOGINDER SINGH
RESPONDENT:
JASWANT KAUR AND ANR.
DATE OF JUDGMENT: 09/02/1994
BENCH:
S. MOHAN & M.K. MUKHERJEE
JUDGMENT:
JUDGMENT
1994(1)SCR 794
The Judgment of the Court was delivered by
M.K. MUKHERJEE, J. 1. In February 1971 Smt. Jaswant Kaur, the respondent
No. 1 herein, initiated legal proceeding before the Rent Controller for
eviction of her tenant, the appellant herein, and b execution of the ex-
parte order passed therein obtained possession of the suit premises in
October, 1971. Immediately thereafter the appellant filed an application
under Order 9 Rule 13 of the Code of Civil Procedure, which was dismissed
by the Rent Controller. However, in appeal the ex-parte order of eviction
was set aside by the Rent Control Tribunal and the proceeding for eviction
filed by the respondent No. 1 was revived. On such revival the appellant
filed an application under Section 144 of the Code of Civil Procedure
before the Rent Controller for restoration of his possession which was
allowed by an order dated May 13, 1977 and warrant for possession was
issued. Before, however, possession could be taken pursuant thereto, the
respondent No. 2 filed an objection before the Rent Controller contending
that in terms of an agreement he had arrived at with the respondent No. 1
he took possession of the suit premises on May 1,1973 as a tenant under
her. He further contended that he was a bona fide transferee and that he
did not know about the earlier eviction proceeding initiated against the
erstwhile tenant. Consequently, he contended, he was not liable to be
dispossessed pursuant to the warrant of possession. The Rent Controller
overruled the objection so raised and the appeal preferred by the
respondent No. 2 against the order of the Rent Controller was dismissed by
Rent Control Tribunal. Thereafter he moved the Delhi High Court by way of a
second appeal which was allowed on the ground that as a bona fide
transferee the respondent No. 2 had independent right to occupy the suit
premises and his right could not be disturbed either in equity or in law
under Section 144 of the Code of Civil Procedure. Hence, this appeal by the
original tenant.
2. In arriving at its conclusion that as a bona fide transferee the
respondent No. 2 could not be evicted from the suit premises
notwithstanding the order for restitution of possession passed in favour of
the appellant the High Court equated the status of the respondent No. 2
with that of a bona fide purchaser in an auction sale. Then, drawing
inspiration from the judgment of this Court in Binayak Swain v. Ramesh
Chandra Panigrahi & Anr.t A.I.R. (1966) S.C. 948, the High Court held that
the right of a bona fide purchaser or transferee stood on a footing
different from that of the parties to the suit as the former had an
independent right.
3. We are unable to share the view expressed by the High Court as in our
considered opinion, the status of a bona fide purchaser in an auction sale
in execution of a decree to which he was not a party stands on a distinct
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and different footing from that of a person who is inducted as a tenant by
a decree-holder-landlord. A stranger auction purchaser does not derive his
title from either the decree-holder or the judgment-debtor and therefore
restitution may not be granted against him but a tenant who obtains
possession from the decree holder landlord cannot avail of the same right
as his possession as a tenant is derived from the landlord. Even in the
case of Binayak Swain (supra), which the High Court relied upon this, Court
has drawn a distinction between purshase made by a decree-holder and a
stranger in auction-sale by quoting with approval the following observation
made in the case of Zain-ul-Abdin Kham v. Muhammad Asghar Ali Khan, (1888)
I.L.R. All. 166 (P.C.):
"It appears to their Lordship that there is a great distinction between the
decree-holders who came in and purchased under their own decree, which was
afterwards reversed on appeal, and the bona fide purchasers who come in and
brought at the sale in execution of the decree to which they were no
parties, and at a time when that decree was a valid decree, and when the
order for the sale was a valid order."
4. In our view the above principle will apply in the case in hand as it is
the decree-holder who has put the respondent No. 2 in possession and,
therefore, when the decree has been set aside he is bound to restore to the
judgment-debtor what he gained under the decree and subsequently
transferred to the respondent No. 2.
5. We, therefore, allow this appeal, set aside the order of the High Court
and direct restoration of possession to the appellant in terms of the order
passed by the Rent Controller. Needless to say such restoration will abide
by the result of the eviction petition filed by the respondent No. 1.
However, there will be no order as to costs.