1994 JTR(SC) 204
1994 2 AllCJ 688 ; 1994 23 AllLR 322 ; 1994 2 CivCC 484 ; 1994 3 CurCC(SC) 450 ; 1994 54 DLT 258 ; 1994 DNJ 69 ; 1994 1 JT 524 ; 1994 2 MhLJ(SC) 1510 ; 1994 2 MLJ 30 ; 1994 1 RCR(Rent) 517 ; 1994 1 RRR 749 ; 1994 3 RRR 418 ; 1994 1 Scale 557 ; 1994 2 SCC 368 ; 1994 1 SCR 794 ; 1994 1 UJ 349 ; 1994 KHC 2717
SUPREME COURT OF INDIA
S. Mohan and M.K. Mukherjee, JJ.
Civil Appeal No. 3307 of 1983
Decided On: 09.02.1994
Gurjoginder Singh Appellants
Vs.
Jaswant Kaur (Smt) and Anr. Respondent
Counsel for the Parties
For Appellant/Petitioner/Plaintiff: Yogesh Kapur and A.D. Sikri, Advs.
For Respondents/Defendant: V.C. Mahajan, Senior Adv. and Rishi Kesh, Adv.
Act Referred :CIVIL PROCEDURE CODE : S.144
(A) The core legal controversy revolves around the application of Section 144 of the Code of Civil Procedure, which governs the doctrine of restitution. The provision is invoked when a decree or order is varied or reversed, necessitating the restoration of the party to the position they would have occupied had the erroneous order not been passed. In this instance, the court examined whether the right to restitution under Section 144 extends to dispossessing a third party who was inducted as a tenant by the decree-holder after the initial execution of an ex parte eviction order, but before the said order was set aside on appeal.
(B) The court distinguished between a bona fide purchaser in a court-ordered auction sale and a person who derives possession from a decree-holder. While a stranger auction purchaser may have an independent title, a tenant inducted by the decree-holder derives their right solely from the decree-holder, making such possession subject to the eventual reversal of the decree.
Facts of the case:
A tenant was evicted via an ex parte order. Subsequently, the eviction order was set aside by a tribunal, and the original tenant applied for restoration of possession under Section 144 of the Code of Civil Procedure. However, the landlord had already inducted a new tenant into the premises. The new tenant claimed to be a bona fide transferee with an independent right to occupy the premises, which was upheld by the High Court.
Findings of Court:
The court found that the High Court erred in equating a tenant inducted by a landlord with a bona fide purchaser in an auction sale. It observed that a tenant's right is derivative, originating from the landlord (the decree-holder). Therefore, if the decree under which the landlord obtained possession is set aside, the landlord is bound to restore the property to the original judgment-debtor, regardless of any subsequent tenancy created.
Issues:
Whether a third-party tenant inducted by a decree-holder can claim an independent right to possession to resist a claim for restitution under Section 144 of the Code of Civil Procedure when the original eviction decree is set aside.
Ratio Decidendi:
A person who obtains possession as a tenant from a decree-holder does not possess an independent title like a stranger auction purchaser; since their possession is derived from the decree-holder, they cannot resist restitution when the decree is reversed, as the decree-holder must restore what was gained under the voided order.
Result:
Appeal allowed; the High Court order was set aside, and the restoration of possession to the original tenant was directed.
(A) The core legal controversy revolves around the application of Section 144 of the Code of Civil Procedure, which governs the doctrine of restitution. The provision is invoked when a decree or order is varied or reversed, necessitating the restoration of the party to the position they would have occupied had the erroneous order not been passed. In this instance, the court examined whether the right to restitution under Section 144 extends to dispossessing a third party who was inducted as a tenant by the decree-holder after the initial execution of an ex parte eviction order, but before the said order was set aside on appeal.
(B) The court distinguished between a bona fide purchaser in a court-ordered auction sale and a person who derives possession from a decree-holder. While a stranger auction purchaser may have an independent title, a tenant inducted by the decree-holder derives their right solely from the decree-holder, making such possession subject to the eventual reversal of the decree.
Facts of the case:
A tenant was evicted via an ex parte order. Subsequently, the eviction order was set aside by a tribunal, and the original tenant applied for restoration of possession under Section 144 of the Code of Civil Procedure. However, the landlord had already inducted a new tenant into the premises. The new tenant claimed to be a bona fide transferee with an independent right to occupy the premises, which was upheld by the High Court.
Findings of Court:
The court found that the High Court erred in equating a tenant inducted by a landlord with a bona fide purchaser in an auction sale. It observed that a tenant's right is derivative, originating from the landlord (the decree-holder). Therefore, if the decree under which the landlord obtained possession is set aside, the landlord is bound to restore the property to the original judgment-debtor, regardless of any subsequent tenancy created.
Issues:
Whether a third-party tenant inducted by a decree-holder can claim an independent right to possession to resist a claim for restitution under Section 144 of the Code of Civil Procedure when the original eviction decree is set aside.
Ratio Decidendi:
A person who obtains possession as a tenant from a decree-holder does not possess an independent title like a stranger auction purchaser; since their possession is derived from the decree-holder, they cannot resist restitution when the decree is reversed, as the decree-holder must restore what was gained under the voided order.
Result:
Appeal allowed; the High Court order was set aside, and the restoration of possession to the original tenant was directed.
A.D.SIKH, RISHI KESH, V.C.MAHAJAN, Yogesh Kapur
JUDGMENT
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 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 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 and Anr., 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 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.