IMMANENI PANDURANGA RAO, J.

( 1 ) THIS revision petition is filed by two auction purchasers in execution of a mortgage decree. The 1st respondent has obtained a money decree in O. S. No. 80 of 1971 on the file of Sub-Court, Rajahmundry based upon an equitable mortgage dt. 11-12-1969 executed by the 2nd respondent in favour of the 1st respondent. The revision petitioners obtained transfer of the mortgage decree in their favour and with the permission of the Court they have participated in the Court sale held on 10-4-1979 and were the highest bidders. Just a day prior to the sale, i. e. , on 9-4-1979, the 3rd respondent filed E. A. No. 256 of 1979 requesting that the intending bidders might be appraised of the fact that the petition schedule premises was under the lease-hold rights. The execution court dismissed that petition on the ground that it is a befated petition and that the lease is subject to mortgage. Challenging the order in E. A. No. 256 of 1979 the 3rd respondent filed C. R. P. No. 3172 of 1979. Muktadar J. , has dismissed that petition on 27-2-1980 observing that the 3rd respondent can seek the assistance of the civil court, if so advised and if his objections are maintainable, and holding that those objections cannot be considered in the revision petition.

( 2 ) THE 3rd respondent filed R. C. C. No. 86 of 1984 and the 4th respondent filed r. C. C. No, 89 of 1984 impleading the decree holder, the judgment debtor and the court auction purchasers for a declaration that they shall not be evicted in execution of the decree or otherwise except in accordance with the provisions of Sections 10,12 and 13 of the A. P. Buildings (Lease, Rent and Eviction) Control act, (hereinafter referred to as the Act ). Both those cases were dismissed on the ground that the. Rent Controller is not competent to grant such a relief. Respondent No. 3 and the respondent No. 4 filed R. C. A. Nos. 17 and 18 of 1983 and the auction purchasers filed cross-objections. The appellate authority dismissed the appeals and allowed the cross-objections holding that the right of commencement of tenancy shall be determined only by the civil court, but, not by the Rent Controller. 3rd and 4th respondent filed C. R. P. Nos. 2823 and 2824 of 1987 and they were dismissed on 16-3-1990.

( 3 ) THEREUPON the petitioners herein filed E. A. No. 46 of 1984 under Order XXI, rule 95 C. P. C. seeking physical delivery of the suit property after ejecting respondents 2 to 4 there from, claiming that by virtue of the leases in their favour they cannot be evicted except under due process of law as provided under the act and that the auction purchasers are not entitled for physical delivery of the suit property.

( 4 ) THE learned Subordinate Judge on a consideration of the oral and documentary evidence held that the 3rd respondent entered into a portion of the suit property as tenant for the first time under Ex. B-129 lease deed dated 5-11-1970 and that the 4th respondent is in occupation of another portion of the suit property in his own right as tenant therein from at least 1968 onwards. The learned Subordinate Judge, therefore, held that inasmuch as the 4th respondent was in possession even prior to the creation of the suit mortgage, Section 65-A of the TRANSFER OF PROPERTY ACT, 1882 has no application to his lease. The learned subordinate Judge, however, held that the application of the Act to the suit building cannot be in dispute; that under Section 10 (i) of the Act a tenant shall not be evicted except in accordance with Sections 10,12 or 13 of the Act and that the respondent Nos. 3 and 4 cannot, therefore, be evicted except under the specific provisions of the Act, because, the provisions of Transfer of Property act are not applicable to leases governed by the Act. He further observed that section 52 of TRANSFER OF PROPERTY ACT, 1882 is also not applicable because, the leases did not come into existence during the pendency of the suit and the respondent nos. 3 and 4

Click Here to Read the rest of this document