Judgment

RAY, J. :- 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 mortgagees interest unless a new relationship was created between the landlord and the tenant-appellant. It was also held that the termination of the mortgagees 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.

4. Against this judgment and order the appellant filed an appeal being Civil Appeal No. 13 of 1976. The said appeal was, however allowed on a finding that the provisions of S. 13(1), Rajasthan Rent Control Act. expressly ruled out the operation of the Transfer of Property Act and a person inducted as a tenant on the premises in a lawful manner could not be evicted except in accordance with the provisions of the Act. The decision in M/s. Sachalmal Parasrarn v. Mst. Ratanbai, AIR 1972 SC 637 and The All India Film Corp. Ltd. v. Raja Gyan Nath, (1969) 3 SCC 79 were held to be not applicable to the instant case. The interest of the appellant as a tenant subsists even after redemption of the mortgage until it is terminated in accordance with the provisions of the aforesaid Rajasthan Premises (Control of Rent and Eviction) Act, 1950.

5. The respondent preferred a Second Appeal being S. B. Civil Execution Second Appeal No. 12 of 1976. The said appeal was allowed by the High Court relying on the Full Bench decision of the High Court in 1984 R.L.R. page 709. On the prayer of the appellent one year time was granted, on the expiry of which possession of the said premises shall have to be delivered. A written undertaking to that effect had been filed by the appellant in compliance with the directions of the Court.

6. The appellant thereafter filed the instant appeal on special leave.

7. The following two questions come up for consideration in this appeal : (i) whether a tenant of a mortgagee can continue as a tenant after redemption of the mortgage decree until he is evicted from the suit premises in accordance with