Mehrotra Vs. Director General Health Services  INSC 106 (9 February 1994)
M.N.(Cj) Venkatachalliah, M.N.(Cj) Mohan, S. (J)
1994 SCC (2) 370 JT 1994 (2) 212 1994 SCALE (2)497
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.
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
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
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.
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
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.
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.
there will be no order as to costs.