JUGDMETN - M.L. PENDSE, J.:---This is an Appeal preferred to challenge Order dated September 4, 1990, passed by learned Insolvency Judge on report dated March 15, 1989, made by the Official Assignee in Insolvency Petition No. 80 of 1984. By the impugned Order, the learned Judge declared that the appellants are not lawful and bona fide tenants/occupants of ownership flat bearing No. 9 in Block B situated at Triveni Co-operative Housing Society Limited, 32nd Road, Bandra, Bombay, and which flat belonged to respondent No. 4-Insolvent. The Order further authorises the Official Assignee to secure vacant possession of the flat from the occupants and, if necessary, with police assistance, and by breaking open the locks and thereafter to sell the Insolvent's right, title and interest in the flat by public auction. The appellants were also directed to pay to the Official Assignee, damages from November 20, 1984, till handing over vacant possession at the rate of Rs. 300/- per month. The learned Judge also directed the appellants to pay a sum of Rs. 2,500/- as costs to respondent No. 5, a creditor, at whose behest the report was initiated by the Official Assignee. The facts which gave rise to passing of this order are as follows.

2. M/s. Sunshine Electric Company, a registered partnership firm, which is respondent No. 2 and its two partners respondents Nos. 3 and 4 were adjudicated Insolvents by Order dated November 20, 1984. The petition for adjudication was filed by the Creditor on November, 6, 1984. One of the property of the Insolvent No. 4 was the flat in a Housing Co-operative Society and it is claim of the appellants that they are in occupation of the flat as monthly tenants from year 1979 and were protected by the provisions of Bombay Rents, Hotel and Lodging House Rates Control Act, 1947. The appellants claim that on December 28, 1983, an agreement was reached with respondent No. 4 for sale of flat in favour of the apellants. In pursuance of the agreement, the shares held by respondent No. 4 in the Housing Society were transferred in favour of the appellants. It is not in dispute that by transfer of shares, the title to the flat vests in the appellants.

After respondent No. 4 was adjudicated Insolvent by Order dated November 20, 1984, on June 1, 1988, the Official Assignee made a report to the Insolvency Court for a declaration that the transaction of sale between appellants and respondent No. 4 should be set aside and declared as void against the Official Assignee in accordance with provisions of section 55 of the Presidency Towns Insolvency Act, 1909. The Official Assignee also sought authorisation to take vacant possession of the flat from the appellants. The Insolvency Court considered the report and the objection of the appellants that prior to the sale, the appellants were in occupation as lessees and were entitled to continue their possession. The Insolvency Court by Order dated October 4, 1988, set aside the sale in favour of the appellants and declared the transaction of transfer as void against the Official Assignee. The Insolvency Court held that question as to whether the appellants are entitled to remain in occupation as lessees will be examined after the Official Assignee submits a fresh report. The decision of the Insolvency Court was challenged before Division Bench of this Court, but the appellants were unsuccessful. The proceedings were carried further to the Supreme Court by the appellants, but the appellants were unable to secure special leave. The Supreme Court, while rejecting the application, observed : "It is clarified that the question left open for decision by the learned Judge will be decided without treating the opinion expressed by him as conclusive and on such evidence, as permissible, according to law."

3. The Official Assignee made fresh report on March 15, 1989, to the learned Insolvency Judge. The Official Assignee, by this report sought a declaration that the appellants are not lawful and bona

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