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High Court Of Delhi
DEVRAJ DOGRA - Appellant
Versus
GYAN CHAND JAIN - Respondent
Civil 1653 of 1979
Decided On : 03/10/1981
TRANSFER OF PROPERTY ACT - SECTION 52 - APPLICABILITY - AUCTION PURCHASER - PHYSICAL POSSESSION - TENANTS - LIS PENDENS - MORTGAGE - LEASE - O. 21 R. 95, 96 CPC - SCOPE AND EFFECT - OUTSIDE AUCTION PURCHASER - RIGHT TO PHYSICAL POSSESSION.
Fact of the Case:
Property was mortgaged and a suit was filed in 1962. A consent decree was passed in 1963 and J. D. was given 2 years to pay the decretal sum, failing which it was to be recovered by auction sale. J. D. failed to pay and he leased out portions to 3 appellants in 1966, 1967 and in 1970. Property was then auctioned on 28. 10. 71 and the Court confirmed the sale on 6. 8. 73. Purchaser then applied for possession on 25. 10. 76 under O. 21 R. 95 and 96. Appellants opposed this claiming that A. P. was not entitled to physical possession against them.
Finding of the Court:
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, is 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 0. XXI, rule 5, and the auction- Purchaser must be held to be entitled to symbolic Possession in terms of the provisions contained in 0. XXI, rule 96 in respect of the Portions in occupation of the appellants.
Issues: Whether the auction purchaser is entitled to physical possession of the property purchased at the auction sale, even though the appellants might have been inducted as tenants after the compromise decree in the suit had been passed?
Ratio Decidendi: 1. Section 52 of the Transfer of Property Act imposes a complete ban on the transfer of any kind or dealing with immovable property except with the authority of the Court during the pendency of the suit or proceeding in which any right to immovable property is directly or specifically in question so that the right of any party may not be affected when any decree or order is passed in the suit or in the proceeding. 2. Section 65-A of the Transfer of Property Act does not, in any way, control Section 52 of the said Act. 3. Section 65-A makes provisions with regard to the powers of the mortgagor to grant leases of the mortgaged property after the creation of the mortgage but before the institution of suit, while, on the other hand Section 52 makes provisions for cases of transfer or otherwise dealing with any property after the institution of a suit or proceeding and Section 52 imposes a complete ban on the transfer of any kind or dealing with immovable property except with the authority of the Court during the pendency of the suit or proceeding in which any right to immovable property is directly or specifically in question so that the right of any party may not be affected when any decree or order is passed in the suit or in the proceeding. 4. Rules 95 and 96 of O. XXI of the Code of Civil Procedure makes provisions for enabling a purchaser of immovable property in a Court sale after obtaining the necessary certificate from the Court in terms of the provisions contained in rule 94 of the Code to apply for delivery of possession of the immovable property purchased by him at the Court sale. 5. Rule 95 provides for actual physical possession and rule 96 provides for symbolic possession.
Final Decision: Appeal allowed. Judgment of High Court directing physical possession of Portions with appellants to be made over to auction-Purchaser set aside. Symbolic Possession to be made over to A. P.
( 1 ) MORTGAGED his property with Oriental Bank on 28. 6. 60. Latter filed suit on 1962 and consent decree was passed on 3. 9. 63 and J. D. was given 2 years to pay decretal sum failing which it was to be recovered by auction sale. J. D. failed to pay and he leased out portions to 3 appellants in 1966, 1967 and in 1 970. Property was then auctioned on 28. 10. 71 and the Court confirmed the sale on 6. 8. 73. Purchaser then applied for possession on 25. 10. 76 under O. 21 R. 95 and 96. Appellants opposed this claiming that A. P. was not entitled to physical possession against them. Single Judge held that u/s 52, T. P. A. , the tenants were not entitled to resist. They appealed to D. B. and their appeal was dismissed and they approached Supreme Court]. Judgement after giving above facts is :
( 2 ) MR. Bhatia, learned counsel appearing on behalf of the tenants, appellants before us, has urged that S. 52 of the Transfer of Property Act has no application to the facts and circumstances of this case, as the conditions laid down in the said Section for the applicability of the said section are not satisfied. It is the argument of Mr. Bhatia that the requirements of the said Section- (1) there must be a suit or proceeding which is not a collusive one and any right to immovable property must be directly and specifically in question in the said suit or proceeding and (2) transfer or otherwise dealing with the property by any party to the suit or proceeding must affect the right of any other party thereto under any decree or order which may be passed therein. Mr. Bhatia has contended that in the instant case the right that the mortgagee had was only to put the property to sale in the event of the mortgagor failing to pay the decretal amount in terms of the provisions of the compromise decree. It is his contention that the right to put the property to sale cannot be said to be a right to immovable property directly and specifically in question in the suit. He also REFERRED TO to S. 65 A of the Transfer of Property Act which empowers the mortgagor while lawfully in possession of the mortgaged property to grant lease in terms of the provisions contained in the said Section. He has submitted that S. 65a should be read along with S. 52 and both these sections have been incorporated with the object of preserving the interest of the mortgagee by making suitable provisions so that the security of the mortgagee might not in any way be affected by any act done by the mortgagor after the creation of the mortgage. It is his submission that in S. 65a of the Transfer of Property Act the Legislature has made it manifestly clear that the mortgagor will be entitled to grant a lease of the property in conformity with the provisions of the said Section and he submits that when a mortgagor grants a lease of the mortgaged property in terms of the provisions of Section 65-A of the Transfer of Property Act, it cannot be said that the granting of any such lease affects the right of the mortgagee. Mr. Bhatia has next contended that in any event S-52 makes provisions for the parties to the suit or proceeding and can have no application to any outside auction purchaser who is not a party to the suit or proceeding and who only acquires his right after the sale in execution of the decree has been confirmed. Mr. Bhatia argues that the judgment of the learned Single Judge of the Delhi High Churt must be held to be wrong, as the learned Single Judge came to his decision relying on the decision of the Division Bench of the Bombay High Court in the case of Ramdas v. Fakira AIR 1959 Bom 19 and decision of the Gujarat High Court in the case of Jagjiwandas v. Lakhirom AIR 1968 Guj. 193 and the decision of the Division Bench of the Bombay High Court in Pamdas Poput Patil s case has been overruled by the Full Bench decision of the Bombay High Court in Anaji v. Ragho AIR 1973 Bom. 75 in which the correctness of the decision of Gujrat has also been questioned. Mr. Bhatia h
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