( 1 ) THIS appeal raises a question of some importance regarding the applicability of sec. 52 and sec. 65a of the Transfer of Property Act. A brief statement of some facts would be helpful in understanding the question. The appellant was a simple mortgagee of the property of respondent No. 2 and he filed Suit No. 80 of 1954 for the realization of his mortgage moneys by sale of the mortgaged property. A preliminary decree was passed in that suit on 29th June 1955 and a final decree was passed on 27th January 1956. The appellant filed execution application No. 18 of 1956 to execute his decree and the property was sold by auction by the Court on 20th July 1959 and was purchased by the appellant. After the appellant bad obtained the final decree on January 27 1956 as stated above respondent No. 2 gave a lease of the property to respondent No. 1 for a period of three years on 17th January 1957 and took in advance rent for the three years. The auction purchaser filed an application for obtaining actual possession of the property which he had purchased at the Court sale. This application was resisted on the ground that the tenant of the mortgagor had taken possession of the suit property by virtue of the lease dated 17th January 1957 and that since this lease was binding on the mortgagee by virtue of sec. 65a of the Transfer of Property Act actual possession of the suit property could not be given to the auction purchaser and that the tenant was entitled to the protection of the Bombay Rents Hotel and Lodging House Rates Control Act 1947 The learned Civil Judge Senior Division Baroda ordered that actual possession should be delivered to the plaintiff from the mortgagor and from his tenant. The learned Civil Judge held that sec. 65a of the Transfer of Property Act was subject to the provisions of sec. 52 of that Act and that the tenancy was created by the mortgagor after the final decree was passed and before the decree was completely satisfied and that therefore sec. 52 of the Transfer of Property Act came into operation and the tenant could not get the benefit of the lessee. The learned Civil Judge on this view ordered actual possession to be given to the auction purchaser. Against this order the tenant preferred Civil First Appeal No 264 of 1961 in the High Court which was heard and decided by Raju J. who allowed the appeal set aside the order of the learned Civil Judge and ordered that symbolical possession should be handed over to the auction purchaser. It was held by Raju J. that sec. 52 of the Transfer of Property Act did not apply to the present case and that the provisions of the Bombay Rents Hotel and Lodging House Rates Control Act applied as between the auction purchaser and the lessee of the mortgagor. Against this judgment and order the present Letters Patent Appeal has been preferred by the auction purchaser.

( 2 ) IT would be here necessary to set out the provisions of sec. 65a of the Transfer of Property Act which are as follows :- (1) Subject to the provisions of sub-sec. (2) a mortgagor while lawfully in possession of the mortgaged property shall have power to make leases thereof which shall be binding on the mortgagee. (2) (A) Every such lease shall be such as would be made in the ordinary course of management of the property concerned and in accordance with any local law custom or usage. (b) Every such lease shall reserve the best rent that can reasonably be obtained and no premium shall be paid or promised and no rent shall be payable in advance. (c) No such lease shall contain a covenant for renewal. (d) Every such lease shall take effect from a date not later than six months from the date on which it is made. (e) In the case of a lease of buildings whether leased with or without the land on which they stand the duration of the lease shall in no case exceed three years and the lease shall contain a covenant for payment of the rent and a condition of re-entry on the rent not being paid within a ti