Full Judgment Text
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PETITIONER:
CHHAVI MEHROTRA
Vs.
RESPONDENT:
DIRECTOR GENERAL HEALTH SERVICES
DATE OF JUDGMENT09/02/1994
BENCH:
VENKATACHALLIAH, M.N.(CJ)
BENCH:
VENKATACHALLIAH, M.N.(CJ)
MOHAN, S. (J)
CITATION:
1994 SCC (2) 370 JT 1994 (2) 212
1994 SCALE (2)497
ACT:
HEADNOTE:
JUDGMENT:
The Judgment of the Court was delivered by
MUKHERJEE, J.- In February 1971 Smt Jaswant Kaur, Respondent
I herein, initiated legal proceeding before the Rent
Controller for eviction of her tenant, the appellant herein,
and in 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
Respondent I 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, Respondent 2
filed an objection before the Rent Controller contending
that in terms of an agreement he had arrived at with
Respondent I 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 Respondent 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 Respondent 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.
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2. In arriving at its conclusion that as a bona fide
transferee Respondent 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 Respondent 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 Panigrahil the High Court held that the
1 AIR 1966 SC 948: (1966) 3 SCR 24: 32 Cut LT 609
370
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 and
different footing from that of a person who is inducted as a
tenant by a decreeholder-landlord. A stranger auction-
purchaser does not derive his title from either the
decreeholder or the judgment-debtor and therefore
restitution may not be granted against him but a tenant who
obtains possession from the decreeholder-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, which the High Court relied upon this Court has drawn
a distinction between purchase made by a decreeholder and a
stranger in auction-sale by quoting with approval the
following observation made in the case of Zain-ul-Abdin Khan
v. Muhammad Asghar Ali Khan 1.
"It appears to their Lordships that there is a
great distinction between the decreeholders
who came in and purchased under their own
decree, which was afterwards reversed on
appeal, and the bona fide purchasers who came
in and bought 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 decreeholder who has put Respondent 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
Respondent 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 Respondent 1.
However, there will be no order as to costs.
(1994) 2 Supreme Court Cases 370
371