RAM JAWAI Vs. SHAKUNTALA DEVI

JUDGEMENT

(1.) This is an application under Order 21, Rule 95 Civil Procedure Code filed by the auction purchaser, M/s Delhi Packaging Pvt Ltd. praying for an order for delivery of posession.

(2.) The facts giving rise to this application are that Shri Bhag Mal Jain, deceased, who is now represented by his legal representatives as judgment debtors, was the owner/lessee of plots Nos. 226 and 227, Block 'L', Gali Nos. 2 and 3, Beadonpura, Karol Bagh, New Delhi which was mortgaged by him for Rs. 94,000 with Shri Balkishan Dass, deceased, who is now represented by his legal representatives as decree holders by means of a mortgage deed dated 19.9.1958 registered on 24.9.1958. In the suit Filed by Balkishan Dass, on the basis of this mortgage deed, a preliminary decree was passed under Order 34 Civil Procedure Code by the Subordinate Judge, Delhi, but all the reliefs claimed by the plaintiff were not granted. He,therefore, filed a first appeal in this Court (RFA <PG>298</PG> No. 172-D/63) which was accepted and a preliminary decree under Order 34, Rule 4 Civil Procedure Code was passed on 31.8.1970 by this Court granting four months time to the judgment debtor to pay the decretal amount. lt was further ordered that in case of his failure to do so. the decree holder would be entitled to apply for the final decree and obtain a direction for sale of the mortgaged property or a sufficient part thereof and recover the decretal amount. The judgment debtor did not make the payment as per theudgment and Decree dated 31.8.1970. The decree holder, therefore, filed O.M.P. No. 13/71 on 29.1.1971 claiming that a sum of Rs. 1,76,718.88 besides interest from 1.1.1971 up to the date of realisation was still due to him and that the preliminary decree passed by this Court on 31.8.1970 be made final and the mortgaged property be directed to be sold and the sale proceeds be applied for satisfaction and payment of the decretal amount.

(3.) There has been a protracted litigation regarding this property since 1971 but after dismissal of various applications/objections filed by Sh.Harbans Lal Naseem and others, the mortgaged property was auctioned on 25.6.1973 and it was purchased by M/s Delhi Packaging Pvt Ltd for a consideration of Rs. 1,40,000 in the court auction. Sh. Harbans Lal Naseem had filed objections on the plea that he had purchased this property in a court auction held on 14th December, 1964 in execution of a decree in the case of Jatinder Prakash vs. bhag Mal Jain and Ors. for Rs.54,000; the sale was confirmed on 14.1.1966 and a sale certificate was issued in his favour on 6.10.1966. The objections filed by Sh. Harbans Lal Naseem were dismissed holding that Harbans Lal had only purchased the right and the interest of the judgment debtor, Sh. Bhag Mal Jain i.e. he purchased the right to redeem the mortgaged property. It was further held that the suit property stood mortgaged with Shri Balkishan Dass, the decree holder, earlier to its sale in the case of Jatinder Prakash vs. Bhag MalJain and others. The appeal filed against those judgments dismissing the objections filed by Sh. Harbans Lal Naseem and Sh. Vidya Sagar were also dismissed. The preliminary decree dated 31.10.1970 passed in favour of the decree holder was made final on 12.8.1971 and the property was auctioned on 25.6.1973 and purchased by M/s Delhi Packaging Pvt. Ltd, being the highest bidder and it deposited the entire sale proceeds. The sale was confirmed and the sale certificate was issued. Possession of the property could not, however, be obtained due to various objections filed by Mr. Harbans Lal and others. In February,1981 the auction purchaser filed this application under Order 21, Rule 95 Civil Procedure Code seeking the relief of recovery of possession from Shri Kanahya Lal Mittal and Shri Kishan Kumar Mittal , Shri Anand Parkash Gupta, Shri A.S. Pathak, Shri Bhagwan Dass and Shri Parma Nand. It has, however, been averred by the learned counsel for the auction purchaser that S/Shri Anand Parkash Gupta, A.S. Pathak, Bhagwan Dass and Parmanand have settled the matter with the auction purchaser out of Court and the only dispute which remains to be decided is regarding that portion of the property which is in possession of Sh. Kanhaya Lal Mittal and Shri Kishan Kumar Mittal, who have contested this application and filed objections. In their reply they have alleged that they have been in lawful occupation of the premises bearing No. 226 Block L, W.E.A. Karol Bagh, New Delhi, having been inducted as tenants by a competent person prior to the auction sale of the said property in favour of the auction purchaser on 25.6.73. It is alleged that they were inducted as tenants in the premises in dispute by Sh. Harbans Lal Naseem soon after 14.1.1966 when the sale certificate was issued to him. They are entitled to continue in the premises as lawful tenants and their tenancy rights cannot be disturbed by the auction purchaser. <PG>299</PG> It is also alleged that the sale was wrongly confirmed in the name of M/s Delhi Packaging Pvt. Ltd. by Sultan Singh, J and, therefore, M/s Delhi Packaging Pvt. Ltd. have no valid right or title to claim possession of these premises from the objectors. It is further stated that when the auction with respect to this property was held on 25.6.1973 they were already in possession of these premises as tenants. It is denied that they were inducted as tenants in the unbuilt up area of these premises and that they have made any unauthorised construction on the said plot of land. It is further alleged that the auction purchaser bad no locus standi to enter upon these premises because they are neither the landlords nor the owners. These pleas taken by Sh. Kanhaya Lal Mittal and Sh. Kishan Kumar Mittal have been controverted by the auction purchasers in their rejoinder and they have denied, that the objectors were inducted in the said premises prior to 25.6.1973. It is further stated that Sh. Harbans Lal Naseem had only purchased the equity of redemption in execution of the decree against Sh. Bhag Mal Jain and he could not have a better title than Sh. Bhag Mal Jain, the original mortgagor. In the mortgage deed dated 19.9.1958 executed by Sh. Bhag Mal Jain in favour of Sh. Balkishan Dass, it has been provided that "the mortgagor has not, nor shall hereafter, encumber, charge or do any thing or cause to be done any thing whereby the security is impaired" meaning thereby the judgment debtor after the date of mortgage could not create any lease of the property in favour of some one else and thereby impair the value of the security. The suit on the basis of mortgage commenced on 18.7.1959 and any lease executed by the judgment debtor or persons who are alleged to have stepped into the shows of the judgment debtor, is hit by the principles of lis pendens and the transferees from the judgment debtor after filing of the Suit are liable to be evicted at the instance of the auction purchaser. The objectors have no right to continue in posession and are liable to be evicted forthwith.