GURJOGINDER SINGH Vs. JASWANT KAUR

JUDGEMENT

(1.) In February 1971 Smt. Jaswant Kaur, respondent 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 respondent 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, Respondent 2 filed an objection before the Rent Controller contending that in terms of an agreement he had arrived at with the respondent 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 disposed 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 the 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 distributed 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 this 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 the 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 Panigrahi)1, A.I.R 1966 S.C. 948 : 1966(3) S.C.R. 24, 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 decreeholder-landlord. A stranger auction-purchaser does not derive his title from wither 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 v. Ramesh Chandra Panigrahi, A.I.R. 1966 S.C. 948 : 1966(3) S.C.R. 24, distinguished, which the High Court relied upon this Court has drawn a distinct between purchase 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 Khan v. Muhammad Asghar Ali Khan)2, I.L.R. 1888(10) All. 167(P.C.) : 15 IA 12 :