Judgment

A. N. 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 bunglow at No 5-C/96, W. E. A. Karol Bagh, New Delhi, at an auction sale held pursuant to the terms of the compromise decree between the mortgagor and the mortgagee, 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 O. XXI, Rr. 95 and 96 of the Code of Civil Procedure.

2. There is no serious dispute with regard to the facts material for the purpose of this appeal. Des Raj Agarwal, the sole proprietor of M/s. Raj Kumar & Co. mortgaged the 2 1/2 storeyed bunglow No. 5-C/96, WEA, Karol Bagh, New Delhi (hereinafter referred to as the premises) along with various other properties with Oriental Bank of Commerce (hereinafter referred as the Bank) on 28-6-1960 by deposit of title deeds. The Bank filed a suit to recover its dues on the mortgage on 6-11-1962. On 3-9-1963, a decree was passed by consent of the parties in favour of the plaintiff-mortgagee for the sum of Rupees 4,79,177.49 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 Cls. 8 and 9 of the compromise are to the following effect :

"8. If the judgment-debtor pays Rupees 4,79,177.49 less costs and interest as after March. 1961 within two years of the decree, then whole of the decree shall stand satisfied.

9. 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 3-9-1963, it appears that the judgment-debtor leased out different portions of the premises to Dev Raj Dogra, Ish Kumar Khosla and Balwant Singh, the appellants herein, in 1966, 1967 and 1970 respectively. The judgment-debtor failed to make payment of the decretal dues in terms of the provisions contained in the consent decree and the premises in question were sold by public auction on 28-10-1971. 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 6-8-1973. On 25-10-76 an application was made on behalf of Gyan Chand Jain, the auction-purchaser, in the Delhi High Court under O. XXI, Rr. 95 and 96 and also Sec. 151 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;

(ii) In case the Honble 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 portions of the property in their occupation be not delivered to the applicant.

The three tenants 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 soid portions in the respective occupation of the tenants, the appellants before us, to be m