DEV RAJ DOGRA Vs. GYAN CHAND JAIN

JUDGEMENT

(1.) The principal question which falls for determination in this appeal by Special Leave granted by this Court, is whether Gyan Chand Jain, the respondent No. 1 in this appeal, who purchased a two and half storeyed bunglow at No 5-C/96, W. E. A. Karol Bagh, New Delhi, at an auction sale held pursuant to the terms of the compromise decree between the mortgagor and the mortgagee, is entitled to recover actual physical possession of the portions in the occupation of the appellants as lessees, the leases in respect of which were created after the decree in the mortgage suit by consent between the parties had been passed, in an application made by the auction-purchaser Gyan Chand Jain under O. XXI, Rr. 95 and 96 of the Code of Civil Procedure.

(2.) There is no serious dispute with regard to the facts material for the purpose of this appeal. Des Raj Agarwal, the sole proprietor of M/s. Raj Kumar and Co. mortgaged the 2 1/2 storeyed bunglow No. 5-C/96, WEA, Karol Bagh, New Delhi (hereinafter referred to as the premises) along with various other properties with Oriental Bank of Commerce (hereinafter referred as the Bank) on 28-6-1960 by deposit of title deeds. The Bank filed a suit to recover its dues on the mortgage on 6-11-1962. On 3-9-1963, a decree was passed by consent of the parties in favour of the plaintiff-mortgagee for the sum of Rupees 4,79,177.49 with costs and future interest at 6% till realisation of the decretal amount . The other relevant terms of the consent decree which are contained in Cls. 8 and 9 of the compromise are to the following effect:

(3.) Mr. Bhatia, learned counsel appearing on behalf of the tenants, the appellants before us, has urged that S. 52 of the Transfer of Property Act has no application to the facts and circumstances of this case, as the conditions laid down in the said section for the applicability of the said section are not satisfied. It is the argument of Mr. Bhatia that the requirements of the said section are - (1) there must be a suit or proceeding which is not a collusive one and any right to immovable property must be directly and specifically in question in the said suit or proceeding and (2) transfer or otherwise dealing with the property by any party to the suit or proceeding must affect the right of any other party thereto under any decree or order which may be passed therein. Mr. Bhatia has contended that in the instant case the right that the mortgagee had, was only to put the property to sale in the event of the mortgagor failing to pay the decretal amount in terms of the provisions of the compromise decree. It is his contention that the right to put the property to sale cannot be said to be a right to immovable property directly and specifically in question in the suit. He also referred to Section 65-A of the Transfer of Property Act which empowers the mortgagor while lawfully in possession of the mortgaged property to grant lease in terms of the provisions contained in the said section. He has submitted that S. 65-A should be read along with S. 52 and both these sections have been incorporated with the object of preserving the interest of the mortgagee by making suitable provisions so that the security of the mortgagee might not in any way be affected by any act done by the mortgagor after the creation of the mortgage and also after the institution of any suit for enforcement of the mortgage. It is his submission that in Section 65-A of the Transfer of Property Act the Legislature has made it manifestly clear that the mortgagor will be entitled to grant a lease of the property in conformity with the provisions of the said section and he submits that when a mortgagor grants a lease of the mortgaged property in terms of the provisions of S. 65-A of the Transfer of Property Act, it cannot be said that the granting of any such lease affects the right of the mortgagee. Mr. Bhatia has next contended that in any event S. 52 makes provisions for the parties to the suit or proceeding and can have no application to any outside auction-purchaser who is not a party to the suit or proceeding and who only acquires his right after the sale in execution of the decree has been confirmed. Mr. Bhatia argues that the judgment of the learned single Judge of the Delhi High Court must be held to be wrong, as the learned single Judge came to his decision relying on the decision of the Division Bench of the Bombay High Court in the case of Ramdas Popat Patil v. Fakira Pandu Patil (supra) and the decision of the Gujarat High Court in the case of Jagjiwandas a Firm v. Lakhiram Haridasmal (supra) and the decision of the Division Bench of the Bombay High Court in Ramdas Popat Patil's case has been overruled by the Full Bench decision of the Bombay High Court in Anaji Thamaji Patil v. Ragho Bhivraj Patil (supra) in which the correctness of the decision of the Gujarat High Court has also been questioned. Mr. Bhatia has commented that the decisions of this Court in the case of Supreme General Films Exchange Ltd. v. Brijnath Singhji Deo (supra) and in the case of Jayaram Mudaliar v. Ayya Swami (supra) do not conclude the question involved in the instant case. He has submitted that the right of a third party auction-purchaser to get physical possession of the property purchased at the auction sale was not considered by the Supreme Court in any of these two decisions; and he has further submitted that in these two cases the Supreme Court had indeed proceeded on the assumption that Section 52 of the Transfer of Property Act was applicable without considering whether the requirements of the said section had been complied with or not, as these aspects were not argued before the Supreme Court in these two cases. Mr. Bhatia has drawn our attention to O. XXI, R. 95 and also to Rule 96 of the Code of Civil Procedure and has submitted that the rights of on auction-purchaser are governed by the provisions contained therein. It is the argument of Mr. Bhatia that in view of the provisions contained therein, the auction-purchaser cannot claim physical possession of the portions in the occupation of the appellants, even though the appellants might have been inducted as tenants after the compromise decree in the suit had been passed.