Case: Dev Raj Dogra And Ors Vs. Gyan Chand Jain And Ors

Code of Civil Proce­dure, and the Court did not have to consider the scope and effect of a pro­ceeding under Order XXI Rule 95 and 96 of the Code of Civil Procedure.23. 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.24. It may be true that Section 52 and Section 65A of the Transfer of Property Act operate in different spheres. Section 65A, 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 65A which came to be inserted by the Amending Act, 1929, is neither made ‘subject to’ nor not withstanding the provisions cotitained 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 became necessary for us to consider whether the grant of any lease by a mortgagor in conformity with the provisions of Section 65A of the Transfer of Property Act 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 out-side 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 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. 163 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 Transfer of Property Act 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”.25. 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 Rule 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 Rule 95 which provides for actual possession and also under Rule 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, as 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 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 Order XXI Rule 95, and the auction-purchaser must be held to be entitled to symbolic possession in terms of the provisions contained in Order XXI Rule 96 in respect of the portions in occupation of the appellants.26.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]We shall now proceed to consider the decision of this Court in the case of M/s, Supreme General Films Exchange Lid. v. His Highness Maharaja Sir Brijnath Singh Deo of Maihar and Ors. (supra) and also the decision of this Court in Jayaram Mudaliar v. Ayya Swami and Ors (supra). In the case of M/s. Supreme General Films Exchange Ltd , the plaintiff-respondent who were the mortgagees 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 1956 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 thecompany, 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 Sections 52 and 65A of the Transfer of Property Act and also Section 64 of theCode 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 feel 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 Transfer ofAct was not attracted to the lease inour opinion, it cannot, therefore, be said that: these two decisions of this Court conclude the question involved in the present appeal beforemay be true that Section 52 and Section 65A of the Transfer of Property Act operate in different spheres. Section 65A, 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 65A which came to be inserted by the Amending Act, 1929, is neither made ‘subjectnor not withstanding the provisions cotitained 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 became necessary for us to consider whether the grant of any lease by a mortgagor in conformity with the provisions of Section 65A of the Transfer of Property Act 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 out-side 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 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 orauction-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 Rule 95 and 96 of theCode of Civil Procedure.It is of interest to note that in the instant case, the auction purchaser had applied forpossession under Rule 95 which provides for actual possession and also under Rule 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 whichthe rights of the auction-purchaser to obtain physical possession of the property purchased, as 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 inunder a title created by the judgment-debtor subsequently to anyof 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 andin 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 Order XXI Rule 95, and the auction-purchaser must be held to be entitled to symbolic possession in terms of the provisions contained in Order XXI Rule 96 in respect of the portions in occupation of the appellants.