Civil Appeal No 1653 of 1979
Appeal by special leave from the Judgment and Order dated 2351979 of the Delhi High Court in EFA No 876
Madan Bhatia and Sushil Kumar for the Appellant
S N Kacker SKMehta PN Puri EMS Anam and MK Dua for the Respondents
The Judgment of the Court was delivered by AN SEN J
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 Bungalow at No 5 C96 WEA Karol Bagh New Delhi at an auction sale held pursuant to the terms of the compromise decree between the morgagor and the morgagee 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 OXXI rules 95  96 of the Code of Civil Procedure
There is no serious dispute with regard to the facts material for the purpose of appeal
Des Raj Agarwal the sole proprietor of Ms 178 Raj Kumar  Co mortgaged the 212 storeyed bungalow No5 C96 WEA
Karol Bagh New Delhi herein after referred to as the premises along with various other properties with Oriental Bank of Commerce hereinafter referred as the Bank on 2861960 by deposit of title deeds
The Bank filed a suit to recover its dues on the mortgage on 6111962
On 391963 a decree was passed by consent of the parties in favour of the plaintiff mortgagee for the sum of Rs 47917749 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 clauses 8 and 9 of the compromise are to the following effects 8
If the judgment debtor pay Rs 47917749 less costs and interest as after March 1961 within two years of the decree then whole of the decree shall stand satisfied
If full amount of the decree with costs and interest is not paid as agreed above within two years of the decree then the decree holder shall be free to enforce the decree against the property mortgaged which shall be sold in execution of the same and the decree holder shall be entitled to proceed against other property and person of the judgment debtor in the case of the proceeds of the property not being sufficient to satisfy the decree
After the decree had been passed on 391963 it appears that the judgement debtor leased out different portions of the premises to Dev Raj Dogra Ish Kumar Khosla and Balwant Singh the appellants herein 1966 1967 and 1970 respectively
The judgment debtor failed to make payment of the decreetal dues in terms of the provisions contained in the consent decree and the premises in question resold by public auction on 28101971
Gyan Chand Jain whose bid was the highest was declared to be the purchaser of the premises and the sale in his favour was confirmed on 681973
On 251076 an application was made on behalf on Gyan Chand Jain the auction purchaser in the Delhi High Court under O XXI rules 95 and 96 and also S151 of the Code of Civil Procedure for the following reliefs i Warrants of possession with the direction that vacant physical possession of the entire property be delivered to the applicant be issued and vacant physical possession of the entire property be got delivered to the applicant 179 ii in case the Hon ble Court comes to a conclusion that the applicant is not entitled to vacate physical possession of any part of the property symbolic possession of that part of the property be granted to him iii notices be issued to the persons mentioned in para 9 above to show cause why vacant physical possession of the portion of the property in their occupation be not delivered to the applicant
The three tenant who were in possession of the respective portions leased out to them and on whom notices had been served contested the said application
A learned Single Judge of the Delhi High Court passed an order of physical possession of the said portions in the respective occupation of the tenants the appellants before us to be made over to the auction purchaser Gyan Chand Jain
The Learned Judge held that the tenancies in favour of the tenants had been created after institution of the suit by the Bank and after the passing of the compromise decree in the said suit and the said tenancies would have no effect on the rights acquired by the auction purchaser in view of the provisions contained in section 52 of the Transfer of property Act
The Learned Judge had relied on the judgment of a Division Bench of the Bombay High Court in the case of Ramdas Popat Patil vs Fakira Pandu Patil and Ors1 and also on decision of Division Bench of the Gujarat High Court in case Jagjiwandas a Firm vs Lakhiram Haridasmal and Ors2 The tenants preferred an appeal against the said order of the learned Judge
Before the Division Bench of the Delhi High Court it was urged on behalf of the tenants that the decision of the Division Bench relied on by the learned Single Judge had been subsequently over ruled by a decision of the Full Bench of the Bombay High Court in case of Anaji Thamaji Patil vs Ragho Bhivraj Patil and Anr3 and the correctness of the decision of the Gujarat High Court had also been questioned in this Full Bench judgment
Various other arguments were also advanced before the Division Bench on behalf of the tenants and the said arguments have been noted in the judgment of the Division Bench
The Division Bench however dismissed the appeal accepting the contention put forward on behalf of the respondent auction purchaser that the decision of this Court in the case of Ms Supreme General Films Exchange Ltd vs His Highness Maharaja Sir Brijnath Singhji
180 Deo of Maihar and Ors concludes the controversy
The Division Bench also referred to the decision of this Court in case Jayaram Mudaliar vs Avva Swami and Ors2 Against the judgment and decision of the Delhi High Court the tenants have preferred this appeal after obtaining special leave from this Court
Mr Bhatia learned counsel appearing on behalf of the tenants the appellants before us has urged that section 52 of the 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 decreetal 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 65A of the 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 section 65A should be read along with section 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 65A of the 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 Section 65 A of the  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 S52 makes provisions for the 181 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 vs Fakira Pandu Patil and Ors
supra and the decision of the Gujarat High Court in the case of Jagjiwandas a Firm vs Lakhiram Haridasmal and Ors
supra and the decision of the Division Bench of the Bombay High Court in Ramdas Popat Patil s case has been over ruled by the Ful Bench decision of the Bombay High Court in Anaji Thamaji Patil vs Ragho Bhivraj Patil and Anr
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 Ms Supreme General Films Exchange Ltd vs His Highness Maharaja Sir Brijnath Singhji Deo of Maihar and Ors
supra and in the case of Jayaram Mudaliar vs Ayya Swami and Ors
supra do not conclude the question involved in the instant case
He has submitted that the rights 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 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 OXXI rule 95 and also to rule 96 of the Code of Civil Procedure and has submitted that the rights of an 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
Mr Kakkar learned counsel appearing on behalf of the auction purchaser has submitted that as the tenants in the instant case were inducted not only after the institution of the suit for enforcement of the mortgage but also after the compromise decree had been passed therein section 52 of the must be held to be applicable and it must be held that the tenancies were illegal and were created in breach of the provisions contained in section 52 of the 182 
Mr Kakkar has argued that section 65 A of the does not in any way control section 52 of the said Act
It is his argument that section 65 A makes provisions with regard to the powers of the mortgagor to grant leases of the mortgaged property after the creation of the mortgage but before the institution of suit while on the other hand section 52 makes provisions for cases of transfer or otherwise dealing with any property after the institution of a suit or proceeding and section 52 imposes a complete ban on the transfer of any kind or dealing with immovable property except with the authority of the Court during the pendency of the suit or proceeding in which any right to immovable property is directly or specifically in question so that the rights of any party may not be affected when any decree or order is passed in the suit or in the proceeding
Mr Kakkar has referred to S58 of the in support of his contention that in case of a mortgage there is a transfer of an interest in specific immovable property for the purpose of securing of the payment of money advanced or to be advanced by way of loan
He has argued that in a suit for the enforcement of mortgage it must therefore be held that the right to immovable property is directly and specifically in question and he has further argued that after the decree for sale is passed in a mortgage suit the mortgagor loses even his right to redeem the property
He has submitted that in the instant case tenancies have been created long after the compromise decree in which provision for sale of the mortgaged property had been made and the right of the mortgagee decree holder to put up the mortgaged property to sale had also arisen for failure on the part of the mortgagor judgment debtor to pay the decretal dues in terms of the compromise decree and the tenancies created by the mortgagor must be held to be illegal and void as they are clearly in contravention of the provisions contained in section 52 of the 
He submits that there cannot be any manner of doubt that the creation of a tenancy affects the value of the property and to that extent affects the security even though it may be said that the Legislature in its wisdom has thought it fit to permit the mortgagor to grant leases of the mortgaged property in terms of the provisions contained in section 65 A of the 
It is his argument that the Legislature has thought it fit not to impose any kind of absolute prohibition in respect of the dealing with any property by the mortgagor after the creation of a mortgage and has imposed only such restrictions which the Legislature thought would not prejudicially effect the security of the mortgagee but the Legislature however in section 52 of the Act has thought fit to impose complete ban on the transfer 183 of or otherwise dealing with any property after the institution of a suit or proceeding in which the right to property is directly or specifically in question so that the rights of any party thereto may not be affected under a decree or order which may be made in the suit or proceeding
Mr Kakkar has next submitted that the auction purchaser at the Court sale acquires all the right title and interest of the mortgagor and also of the mortagee as a result of the purchase and the auction purchaser therefore steps into the shoes of the mortgagee and becomes entitled to obtain physical possession of the property purchased in the same manner as the mortgagee himself would have been able to do
Mr Kakkar in this connection has referred to the decision of this Court in the case Mangru Mahto and Ors
vs Shri Thakur Taraknath Tarakeshwar Math and Ors1 and also to the decision of the Supreme Court in Ms Supreme General Films Exchange Ltd vs His Highness Maharaja Sir Brijnath Singhji Deo of Maihar and Ors
supra It is the submission of Mr Kakkar that the decisions of this Court in the case of Ms Supreme General Films Exchange Ltd supra and also in the case of Jayaram Mudaliar supra conclude the question involved in the present appeal and the Division Bench rightly dismissed the appeal relying on the said decisions
Before we proceed to deal with the respective contentions of the parties it will be convenient to consider the material provisions of the relevant statutes to which we were referred in the course of submissions made from the bar
Section 52 of the reads as follows During the pendency in any Court having authority within the limits of India excluding the State of Jammu and Kashmir or established beyond such limits by the Central Government of any suit or proceeding which is not collusive and in which any right to immovable property is directly and specifically in question the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein except under the authority of the Court and on such terms as it may impose
Explanation For the purposes of this section the pendency of a suit or proceeding shall be deemed to commence from the date of the presentation of the plaint or the institu 184 tion of the proceeding in a Court of competent jurisdiction and to continue until the suit or proceeding has been disposed of by a final decree or order and complete satisfaction or discharge of such decree or order has been obtained or has be come unobtainable by reason of the expiration of any period of limitation prescribed for the execution thereof by any law for the time being in force Material provisions of section 58 a and b of the said Act are in the following terms a A Mortgage is the transfer of an interest in specific immovable property for the purpose of securing the payment of money advanced or to be advanced by way of loan an existing or future debt or the performance of an engagement which may give rise to a pecuniary liability
The transferor is called a mortgagor the transferee a mortgagee the principal money and interest of which payment is secured for the time being are called the mortgage money and the instrument if any by which the transfer is effected is called a mortgage deed
b Where without delivering possession of the mortgaged property the mortgagor binds himself personally to pay the mortgage money and agrees expressly or impliedly that in the event of his failing to pay according to his contract the mortgagee shall have a right to cause the mortgaged property to be sold and the proceeds of sale to be applied so far as may be necessary in payment of the mortgage money the transaction is called a simple mortgage and the mortgagee a simple mortgagee section 65A which was subsequently introduced into the Act by section 30 of the Transfer of Property Amendment Act 1929 provides 1 Subject to the provisions of sub section 2 a mortgagor while lawfully in possession of the mortgaged property shall have power to make leases thereof which shall be binding on the mortgagee
2 a Every such lease shall be such as would be made in the ordinary course of management of the property concerned and in accordance with any local law custom or usage
185 b Every such lease shall reserve the best rent that can reasonably be obtained and no premium shall be paid or promised and no rent shall be payable in advance
c No such lease shall contain a covenant for renewal
d Every such lease shall take effect from a date not later than six months from the date on which it is made
e In the case of a lease of buildings whether leased with or without the land on which they stand the duration of the lease shall in no case exceed three years
and the lease shall contain a covenant for payment of the rent and a condition of re entry on the rent not being paid within a time therein specified
3 The provisions of sub section 1 apply only if and as far as a contrary intention is not expressed in the mortgagedeed and the provision of sub section 2 may be varied or extended by the mortgage deed and as so varied and extended shall as far as may be operate in like manner and with all like incidents effects and consequences as if such variations or extensions were contained in that sub section
Rules 95 and 96 of OXXI of the Code of Civil Procedure under which the auction purchaser in the instant case had made the application for possession are in the following effect 95
Where the immovable property sold is in the occupancy of the judgment debtor or of some person on his behalf or of some person claiming under a title created by the judgment debtor subsequently to the attachment of such property and a certificate in respect thereof has been granted under rule 94 the Court shall on the application of the purchaser order delivery to be made by putting such purchaser or any person whom he may appoint to receive delivery on his behalf in possession of the property and if need be by removing any person who refuses to vacate the same
Where the property sold is in the occupancy of a tenant or other person entitled to occupy the same and a certificate in respect thereof has been granted under rule 94 the Court shall on the application of the purchaser order delivery to be made by affixing a copy of the certificate of sale in 186 some conspicuous place on the property and proclaiming to the occupant by beat of drum or other customary mode at some convenient place that the interest of the judgment debtor has been transferred to the purchaser
An analysis of section 52 of the indicates that for application of the said section the following conditions have be satisfied 1
A suit or a proceeding in which any right to immovable property must be directly and specifically in question must be pending 2
The suit or the proceeding shall not be a collusive one 3
Such property during the pendency of such a suit or proceeding cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the right of any other party thereto under any decree or order which may be passed therein except under the authority of Court
In other words any transfer of such property or any dealing with such property during the pendency of the suit is prohibited except under the authority of Court if such transfer or otherwise dealing with the property by any party to the suit or proceeding affects the right of any other party to the suit or proceeding under any order or decree which may be passed in the said suit or proceeding
It has to be noted that this section imposes a prohibition on transfer or otherwise dealing with any property during the pendency of a suit provided the conditions laid down in the section are satisfied
section 58 makes it clear that in case of a mortgage there is a transfer of an interest in the specific immovable property mortgaged for the purpose of securing the payment of money advanced or to be advanced by way of a loan an existing or future debt or the performance of an engagement which may gives rise to pecuniary liability
It further confers in case of a simple mortgage where without delivering the possession of the mortgaged property the mortgagor binds himself personally to pay the mortgage money a right on the mortgagee to cause the mortgaged property to be sold and the proceeds of sale to be applied so far as may be necessary in payment of the mortgage debt 187 section 65A which as we noticed earlier was introduced by the Amending Act 1929 in recognition of the mortgagor s powers exercised bona fide to grant lease of the mortgage property in the usual course of management makes provision with regard to the exercise of such powers by the mortgagor while the mortgage subsists and the mortgagor is in lawful possession of the mortgaged property
This section further makes it clear that any lease granted by the mortgagor in accordance with the provisions of this section would be binding on the mortgagee
Rules 95 and 96 of OXXI of the Code of Civil Procedure makes provisions for enabling a purchaser of immovable property in a Court sale after obtaining the necessary certificate from the Court in terms of the provisions contained in rule 94 of the Code to apply for delivery of possession of the immovable property purchased by him at the Court sale
Rule 95 provides for actual physical possession and rule 96 provides for symbolic possession
A plain reading of rule 95 which we have earlier set out clearly establishes that the purchaser will be entitled to physical possession of property purchased and the Court will direct delivery of actual possession of the property sold to him by removing any person who refuses to vacate the same if need be if the following conditions are satisfied 1
The property sold must be in the occupation of the judgment debtor 2
The property sold must be in the occupancy of some person on behalf of the judgement debtor 3
The property sold must be in the occupation of some person claiming under a title created by the judgment debtor subsequently to the attachment of the property
Rule 96 on the other hand makes it clear that where the property sold is in the occupancy of a tenant or other person entitled to occupy the same symbolic possession of the property in the manner provided in the said rule is to be made over to the purchaser after the purchaser has obtained the necessary certificate under rule 94 of the Code
We shall now proceed to consider the decision of this Court in the case of Ms Supreme General Films Exchange Ltd vs His Highness Maharaja Sir Brijnath Singh Deo of Maihar and Ors
supra and also the decision of this Court in Jayaram Mudaliar vs Ayya Swami and Ors supra
In the case of Ms Supreme General Films Exchange 188 Ltd the plaintiff respondent who were the mortgagee of a cinema theatre of which the appellant Supreme General Films Exchange Ltd claimed to be a lessee in occupation had filed a suit against the mortgagor and a decree by compromise had been passed in the said suit on 7th May 1960
By the said compromise decree it was agreed that the amounts due to the mortgagee decree holder would be realised by the sale of the theatre
The Central Bank of India another creditor of the mortgagor assigned its rights under the decree to the plaintiff decree holder
The theatre was attached in the course of execution of the decree
The original lease of 1940 on the basis of which the appellant the Supreme General Films Exchange Ltd had entered into possession expired in 1946 but thereafter the Company had continued in possession as a tenant holding over until the impugned lease deed of 1946 in favour of the company was executed
The company filed a suit in 1954 for specific performance of the agreement to lease and the lease deed of 1956 was executed in compliance with the terms of the compromise decree passed in the said suit filed by the appellant company
In the said suit for specific performance by the appellant company the plaintiff mortgagee was not impleaded as a party
The plaintiff mortgagee thereafter filed a suit claiming that the lease of 1956 was void as the same came within the mischief of Ss 52 and 65A of the and also section 64 of the Code of Civil Procedure
The appellant company contested the said suit contending inter alia that the suit of this nature filed by the plaintiff mortgagee did not lie as it fell outside the purview of section 42 of the Specific Relief Act
The trial Court decreed the said suit of the plaintiff mortgagee and granted the declaration asked for
The appellant company preferred an appeal against the decree of the trial Court to the High Court which dismissed the said appeal
Thereafter the appellant company filed a further appeal to this Court by special leave granted by this Court
This Court for reasons recorded in the judgment held that the plaintiff was entitled to the declaration asked for on proper construction of section 42 of the Specific Relief Act
One of the contentions which was raised on behalf of the appellant in this Court was that section 52 of the was not attracted to the lease in question
Dealing with contention this Court observed at pp
243 244 as follows The contention that the case fell outside the purview of section 52 of the as the lease was executed in purported satisfaction of an antecedent claim rests upon the terms of an agreement of 1948 embodied in a letter on the strength of which the defendant appellant had 189 filed his suit for specific performance
We find that the terms of the compromise decree in that suit and lease deed of 1956 purported to confer upon the defendant appellant new rights
Indeed there are good grounds for suspecting that the compromise in the suit for specific performance was adopted as a device to get round legal difficulties in the execution of the lease of 1956 in favour of the defendant company
We are unable to accept the argument sought to be supported by the citation of Bishan Singh and Ors
vs Khazan Singh and Anr
AIR that the lease was merely an enforcement of an antecedent or pre existing right
We think that it purported to create entirely new rights pendent lite
It was therefore struck by the doctrine of lis pendens as explained by this Court in Jayaram Mudaliar vs Ayyaswami and ors
1973 SCR 139 embodied in Section 52 of the 
An alternative argument of the appellant was that a case falling within section 65A 2 a of the  confining the duration of a lease by a mortgagor to three years being a special provision displaces the provisions of section 52 of the 
This argument overlooks the special object of the doctrine of lis pendens which applies to a case in which litigation relating to property in which rights are sought to be created pendente lite by acts of parties is peening
Moreover for the purposes of this argument the defendant appellant assumes that the provisions of Section 65A2 e are applicable
If that was so it would make no substantial difference to the rights of the defendant appellant which would vanish before the suit was filed if Section 65A applies
We however think that as the special doctrine of lis pendens is applicable here the purported lease of 1956 was invalid from the outset
In this view of the matter it is not necessary to consider the applicability of Section 65A 2 e which the defendant appellant denies to the facts of this case This Court further held agreeing with the concurrent findings of the Trial Court and the High Court that the lease of 1956 was also struck by the provisions of section 64 of the Civil Procedure Code as the property continued to remain under attachment at the time of the grant of the lease in 1956
190 It may be noted that in the case the validity of the lease had been questioned by the mortgagee decree holder in a suit for appropriate declaration
The claim was not for possession by a third party auction purchaser in a proceeding under rr 95 and 96 of OXXI of the Code of Civil Procedure and the merits of an application under the said provisions of the Code and the scope and effect thereof did not come up for consideration In the case of Mangru Mahto and Ors
vs Shri Thakur Taraknath Tarakeshwar Math and Ors
supra the mortgagor had granted lease of the mortgaged property to certain persons
In execution of the mortgage decree the mortgagee himself purchased the property at the auction
The lessees of the mortgaged property had allowed the property to be sold and had not applied for being added as a party
The mortgagee had also obtained the money decree against one of the lessees and in execution of the decree had attached the mortgaged land
The lessees filed claim petitions objecting to the attachment under OXXI rule 58 of the Code of Civil Procedure
The claim petitions filed by the lessees were allowed and the executing court held that the leases were genuine
The mortgagee auction purchaser did not file any suit under Order XXI rule 63 but latter filed a suit against the mortgagor and the lessees for recovery of possession of the lands alleging that the leases were collusive transactions and were otherwise not binding on him
The Trial Court dismissed the suit holding that the leases were genuine but the High Court decreed the suit holding that the leases were sham transactions and were made in contravention of section 65A of the 
The lessees thereafter preferred and appeal to this Court under certificate granted by the High Court
One of the contentions raised before this Court was that as the mortgagee did not file a suit under o XXI rule 63 of the Code of Civil Procedure after the claim petitions of the lessees under OXXI rule 58 of the Code of Civil Procedure had been allowed and the mortgagee was not entitled to maintain the suit for recovery of possession of the mortgaged land and for mense profits on the allegation that the leases were collusive transactions and were otherwise not binding on him
This contention was negatived by this Court for reasons recorded in the judgment
This Court further held that the validity of the leases granted by the mortgagor was not affected by section 65A of the as the leases were granted before the enactment of section 65 A
As these aspects do not have any material bearing on the question involved in the present appeal it does not become necessary for us to pursue these two aspects any further
This Court however held that the leases in question were not granted by the mortgagor in the ordinary 191 course of management as the agent or bailiff of the mortgagee and were not binding on the mortgagee and in that view of the matter this Court dismissed the appeal
This Court observed at p 132 as follows A lease granted by the mortgagor out of the ordinary course of management though not binding on the mortgagee is binding as between the mortgagor and the lessee
Such a lessee acquires an interest in the right of redemption and is entitled to redeem
If such a lease is created before the institution of a suit relating to the mortgage the lessee must be joined as a party to the suit under O 34 r 1 CPC otherwise he will not be bound by the decree passed in the suit and will continue to retain his right of redemption
But in view of section 52 of the  if the mortgagor grants such a lease during the pendency of a suit for sale by the mortgagee the lessee is bound by the result of the litigation
If the property is sold in execution of the decree passed in the suit the lessee cannot resist a claim for possession by the auction purchaser
The lessee could apply for being joined as a party to the suit and ask for an opportunity to redeem the property
But if he allows the property to be sold in execution of the mortgage decree and they have now lost the present case the lessees allowed the suit lands to be sold in execution of the mortgage decree and they have now lost the right of redemption
They cannot resist the claim of the auction purchaser of recovery of possession of the lands
 It may be noted that the Court immediately after the aforesaid observations has further observed as follows If a mortgagor in possession of the mortgaged property executes a lease of the property in the ordinary course of management as the agent or bailiff of the mortgagee during the pendency of a suit by the mortgagee to enforce the mortgage a question may arise whether such a lease is in the eye of the law a lease granted by the mortgagee through his agent and therefore binding on him
But in the present case that question does not arise as the leases were not granted by the mortgagor in the ordinary course of management as the bailiff or agent of the mortgagor
 It is to be noticed that this decision arose out of the suit instituted by the mortgagee auction purchaser for recovery of possession of 192 mortgaged property sold in execution of the mortgage decree and purchased by the mortgagee himself and the decision in the case rested mainly on the basis that the lease was not granted by the mortgagor in the usual course of business
This case was also not concerned with an application by an outside auction purchaser for physical possession of the property purchased by him in an application made under OXXI rr 95 and 96 of the Code of Civil Procedure and the Court did not have to consider this scope and effect of a proceeding under OXXI rr 95 and 96 of the Code of Civil procedure
In our opinion it cannot therefore be said that these two decisions of this Court conclude the question involved in the present appeal before us
It may be true that section 52 and section 65 A of the operate in different spheres
S65 A as we have earlier noticed deals with the powers of the mortgagor to grant a lease of the mortgaged property while the mortgagor remains in lawful possession of the same
section 52 deals with cases of transfer of or otherwise dealing with any immovable property after any suit or proceeding in which any right to the said immovable property is directly and specifically in question has been filed
It is also to be noted that section 65 A which came to be inserted by the Amending Act 1929 is neither made subject to  nor not withstanding the provisions  contained in section 52 of the Act
section 52 will however be only applicable if the requirements of the said section are satisfied
We have earlier noticed what the requirements of the said section are
In the instant case it does not become necessary for us to consider whether the grant of any lease by a mortgagor in conformity with the provisions of section 65 A of the during the pendency of a suit by the mortgagee to enforce the mortgage will attract the provisions of section 52 of the Act or will be outside the mischief of the provisions of the said section on the ground that the creation of such a lease may not affect the rights of the mortgagee under any decree or order which may be passed in the suit
We have earlier quoted the observations of this Court in the case of Mangru Mahto supra and it will be noticed that the Supreme Court in the said case did not decide this question and left this question open
In the instant case an outside auction purchaser is seeking recovery of the physical possession of the property purchased by him at the auction from the appellants who are in possession of different portions of the said premises as tenants of the said por 193 tions
The auction purchaser in the instant case was not the mortgagee and he was no party to the suit in which the compromise decree was passed
section 52 in clear terms speaks of the rights of the parties to the suit or proceeding
In this connection it may be noted that this Court in the case of Jayaram Mudaliar supra held at p 153 as follows It is evident that the doctrine as stated in section 52 applies not merely to actual transfers of rights which are subject matter of litigation but to other dealings with it by any party to the suit or proceeding so as to affect the right of any other party thereto
Hence it could be urged that where it is not a party to the litigation but an outside agency such as the tax collecting authorities of the Government which proceeds against the subject matter of litigation without anything done by a litigating party the resulting transaction will not be hit by section 52
Again where all the parties which could be affected by a pending litigation are themselves parties to a transfer or dealings with property in such a way that they cannot resile from or disown the transaction impugned before the Court dealing with the litigation the Court may bind them to their own acts
All these are matters which the Court could have properly considered
The purpose of Section 52 of the is not to defeat any just and equitable claim but only to subject them to the authority of the Court which is dealing with the property to which claims are put forward
 The auction purchaser derives his right to obtain possession only after the sale in his favour has become absolute and sale certificate has been obtained by him
The mode and manner of obtaining such possession are regulated by rr 95 and 96 of the Code of Civil Procedure
It is of interest to note that in the instant case the auction purchaser had applied for obtaining possession under r 95 which provides for actual possession and also under r 96 which provides for symbolic possession
We have earlier set out the provisions of these two rules
In the facts and circumstances of this case the auction purchaser in view of the provisions contained in rule 95 which regulates the rights of the auction purchaser to obtain physical possession of the property purchased is not entitled to recover the physical possession of the portions in the occupation of the appellants as tenants
The appellants are not the judgment debtors
They are not in occupation of the property on behalf of the judgment debtor
They are also not claiming to be in occupation under 194 a title created by the judgment debtor subsequently to any attachment of the property
There has been no question of any attachment in the instant case
The appellants are in the occupation of the respective portions as tenants and they claim to occupy the same as such
The question of validity or otherwise of the tenancy may have to be considered and determined in an appropriate proceeding
In the present proceeding the auction purchaser who is an outsider and was not a party to the suit resulting in the compromise decree in execution of which the property was put up for sale is not entitled to recover physical possession from the appellants in view of the provisions contained in O XXI rule 95 and the auction purchaser must be held to be entitled to symbolic possession in terms of the provisions contained in OXXI rule 96 in respect of the portions in occupation of the appellants
We accordingly allow this appeal
We set aside the judgment and order passed by the High Court directing physical possession of the portions in the occupation of the appellants to be made over to the auction purchaser Gian Chand Jain We direct that symbolic possession of the portions in occupation of the appellants is to be made over to the auction purchaser Gian Chand Jain
In the facts and circumstances of this case we make no order as to costs
NVK Appeal allowed


Summary:
Order XXI Rules 95 and 96 of the Code of Civil Procedure enable a purchaser of immovable property in a Court sale to apply for delivery of possession
Rule 95 provides for actual physical possession and rule 96 provides for symbolic possession
A purchaser will be entitled to physical possession of the property purchased if the property sold is in the occupation of the judgment debtor of some person on behalf of the judgment debtor or some person claiming under a title created by the judgment debtor subsequent to the attachment of the property
If the property sold is in the possession of a tenant or other person entitled to occupy the same symbolic possession is to be made over to the purchaser under Rule 96
The first respondent was an auction purchaser of property of which the three appellants were tenants occupying different portions
The property was mortgaged by its owner with a Bank
As the amount due was not paid the Bank instituted a suit for its recovery
A decree was passed by consent of the parties which provided that if the amount was not paid within two years the Bank could enforce the decree by sale of the property
After the compromise decree was passed the owner leased out different portions of the property to the appellants
As the owner failed to make payment of the decreetal dues the property was sold by Court auction and the first respondent whose bid was the highest was declared to be the purchaser of the premises and the sale in his favour was confirmed
The first respondentauction purchaser filed an application under Order XXI Rules 95 and 96 read with Section 151 of the Code of Civil Procedure in the High Court for delivery of vacant physical possession of the entire property and prayed that if it was not possible to grant vacant physical possession of any part of the property symbolic possession of that part may be granted
This application was contested by the three appellantstenants
A Single Judge of the High Court holding that the tenancies in favour of the appellants having been created after the institution of the suit by the Bank and after the passing of the compromise decree in the said suit and the said tenancies would have no effect on the rights acquired by the auction purchaser in view of Section 52 of the  and relying on the Division Bench Judgments of the Bombay High Court in Ramdas Popat Patil vs Fakira Patil and Ors
AIR 1959 Bom 19 and of the Gujarat High Court in Jagjiwandas a Firm vs 175 Lakhiram Haridasmal and Ors
AIR 1968 Guj 193 passed an order for delivery of physical possession of the portions in the respective occupation of the appellants
In appeal it was contended that the Full Bench decision of the Bombay High Court in Anaji Thamaji Patil vs Ragho Bhivraj Patil and Anr
AIR 1973 Bom 75 over ruled the Bombay Division Bench decision and doubted the correctness of the Gujarat decision but the Division Bench of the High Court dismissed the appeal accepting the contention put forward on behalf of the respondent purchaser that the decision of this Court in Ms Supreme General Films Exchange Ltd vs His Highness Maharaja Sir Brijnath  concluded the controversy
In the appeal to this Court it was contend on behalf of the appellants that 1 Section 52 of the has no application to the facts and circumstances of this case as the conditions laid down therein for its applicability are not satisfied
ii The right that the mortgagee had was only to put the property to sale in the event of the mortgagor failing to pay the decreetal amount in terms of the provisions of the compromise decree and this right cannot be said to be a right to immovable property directly and specifically in question in the suit
iii Section 65A of the should be read alongwith Section 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
iv Section 52 makes provisions for the parties to the suit or proceeding and can have no application to any 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
v The right of the third party auction purchaser to get physical possession of the property purchased at the auction sale was not considered by the Supreme Court in Ms Supreme General Films Exchange Ltd vs His Highness Maharaja Sir Brijnath Singhji Deo of Maihar and Ors
and Jayaram Mudaliar vs Ayya Swami and Ors
AIR vi Order XXI Rule 95 and Rule 96 of the Code of Civil Procedure provides that the rights of an auction purchaser are governed by the provisions contained therein and that the auction purchaser cannot claim physical possession of the portions in the occupation of the appellants even though they might have been inducted as tenants after the compromise decree in the suit had been passed
On behalf of the first respondent auction purchaser it was submitted that 1 as the tenants were inducted not only after the institution of the suit for enforcement of the mortgage but also after the compromise decree that has been passed therein Section 52 of the must be held to be applicable 176 and it must be held that the tenancies were illegal and were created in breach of these provisions
S2 65A the does not in any way control section 52
S 65A makes provisions with regard to the powers of the mortgagor to grant leases of the mortgaged property after the creation of the mortgage but before the institution of suit while section 32 makes provisions for cases of transfer or otherwise dealing with any property after the institution of a suit or proceeding and section 52 imposes a complete ban on the transfer of any kind or dealing with immovable property except with the authority of the Court during the pendency of the suit or proceeding so that the rights of any part may not be affected when any decree or order is passed
Section 58 of the provides that a mortgage is a transfer of an interest in specific immovable property for the purpose of securing the payment of money advanced or to be advanced by way of loan
In a suit for the enforcement of a mortgage the right to immovable property is directly and specifically in question and after the decree for sale is passed the mortgagor loses even his right to redeem the property
The tenancies in the instant case having been created long after the compromise decree are illegal and void and in contravention of section 52 of the Act
The decisions of this Court in Ms Supreme General Films Exchange Ltd Manager Mahto and Ors
and Jayaram Mudaliar conclude the question involved in the appeal
On the question whether the 1st Respondent as auction purchaser in an application under Or
XXI rules 95 and 96 of the Code of Civil Procedure is entitled to recover actual physical possession of the portions in the occupation of the appellants as lessees the lease in respect of which were created after the decree in the mortgage suit by consent between the parties had been passed
Allowing the appeal  HELD 1
The Judgment and Order passed by the High Court directing physical possession of the portions in the occupation of the appellants to be made over to the auction purchaser Respondent No 1 is set aside
Symbolic possession of the portions in occupation of the appellants to be made over to the auction purchaser respondent
194 D 2
In the case of Ms Supreme General Films Exchange Ltd the validity of the lease had been questioned by the mortgagee decree holder in a suit for declaration
The claim was not for possession by a third party auction purchaser in a proceeding under rules 95 and 96 of order XXI of the Code of Civil Procedure and the merits of such an application and the scope and effect of the said provisions of the Code did not come up for consideration
In Mangru Matho and Ors
vs Shri Thakur Taraknath Tarakeshwar Math and Ors
a suit was instituted by the mortgagee auction purchaser for recovery of possession of mortgaged property sold in execution of the mortgage decree and purchased by the mortgagee himself and the decision rested mainly on the basis that the lease was not granted by the mortgagor in the usual course of business
This case was also not concerned with an application by an outsider auction purchaser for physical possession of the property purchased by him in an application made under order XXI Rules 95 and 96 of the Code of Civil Procedure
These two decisions do not therefore conclude the question involved in the present appeal190 A B 191 H 192 C 177 3
The auction purchaser derives his right to obtain possession only after the sale in his favour has become absolute and sale certificate has been obtained by him
The mode and manner of obtaining such possession are regulated by Rules 95 and 96 of the Code of Civil Procedure193 F In the instant case a third party auction purchaser is seeking recovery of the physical possession of the property purchased by him at the auction from the appellants who are in possession of different portions of the said premises as tenants of the said portions
The auction purchaser was not the mortgagee and he was no party to the suit in which the compromise decree was passed
The auction purchaser in view of the provisions contained in Rule 95 which regulate the rights of the auction purchaser to obtain physical possession of the property is not entitled to the recover the physical possession of the portions in the occupation of the appellants as tenants
The appellants are not the judgment debtors
They are not in occupation of the property on behalf of the judgment debt or
They are also not claiming to be in occupation under a title created by the judgment debtors subsequent to any attachment of the property
There is no question of any attachment in the case
The appellants are in the occupation of their respective portions as tenants and they claim to occupy the same as such
The auction purchaser must therefore be held to be entitled to only symbolic possession in terms of the provisions contained in Or XXI rule 96 in respect of the portions in occupation of the appellants
192 H 193 A 193 H 194 A C