HANUMANT KUMAR TALESARA Vs. MOHAN LAL

JUDGEMENT

(1.) This is an appeal by special leave against the judgment and order dated 26th November. 1984 in S. B. Civil Execution Second Appeal No. 12 of 1976 whereby the appeal was allowed and respondent was granted one year time to vacate the premises.

(2.) The facts giving rise to this appeal are as follows:- The respondent mortgaged the shop belonging to him to the defendants 1 to 11 on 9th May, 1950 by a registered mortgage deed. The possession of the premises was given to the mortgagees with right to collect rent from the tenant in payment of interest on the mortgage amount. The mortgagees let out the premises to the defendant petitioner during the subsistence of mortgage.

(3.) The respondent filed a suit for redemption of the mortgage and for vacant possession of the said shop against the mortgagees i.e. the defendants 1 to 11. The appellant who was the tenant of the shop was impleaded as party defendant 12 in the suit. The suit was decreed and the mortgage was redeemed. There was an order for giving vacant possession of the shop by the defendants 1 to 11 to the respondent i.e. the owner of the shop. In Execution case No. 125 of 1975 the tenant appellant filed an application under S. 47 read with S. 151, Civil P.C., 1908 stating inter alia that the decree could not be executed and possession of the shop could not be given by the mortgagees to the decree-holder respondent as the tenancy of the appellant subsisted and the same had not been terminated under the provisions of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950. This plea was rejected by the executing court holding inter alia that letting out of the shop to the defendant 12 by the mortgagees was held to be not a bona fide act made as a person of ordinary prudence in the course of management of toe property under S. 76A, T. P. Act, and that the relationship of the lessor and lessee could not subsist beyond the mortgagee's interest unless a new relationship was created between the landlord and the tenant-appellant. It was also held that the termination of the mortgagee's interest put an end to the relationship of landlord and tenant and the provisions of the Rent Control Act could not apply any further. The decree was executable and the appellant had no interest and as such he could not resist the execution of the decree. The application was dismissed.