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PETITIONER: CHHAVI MEHROTRA

       Vs.

RESPONDENT: DIRECTOR GENERAL HEALTH SERVICES

DATE OF JUDGMENT09/02/1994

BENCH: VENKATACHALLIAH, M.N.(CJ) BENCH: VENKATACHALLIAH, M.N.(CJ) MOHAN, S. (J)

CITATION:  1994 SCC  (2) 370        JT 1994 (2)   212  1994 SCALE  (2)497

ACT:

HEADNOTE:

JUDGMENT: The Judgment of the Court was delivered by MUKHERJEE, J.- In February 1971 Smt Jaswant Kaur, Respondent I  herein,  initiated  legal  proceeding  before  the   Rent Controller for eviction of her tenant, the appellant herein, and  in  execution  of the ex  parte  order  passed  therein obtained  possession of the suit premises in  October  1971. Immediately  thereafter the appellant filed  an  application under  Order 9 Rule 13 of the Code of Civil Procedure  which was  dismissed by the Rent Controller.  However,  in  appeal the  ex  parte order of eviction was set aside by  the  Rent Control  Tribunal and the proceeding for eviction  filed  by Respondent  I  was revived.  On such revival  the  appellant filed an application under Section 144 of the Code of  Civil Procedure before the Rent Controller for restoration of  his possession which was allowed by an order dated May 13,  1977 and  warrant  for possession was issued.   Before,  however, possession  could  be taken pursuant thereto,  Respondent  2 filed  an  objection before the Rent  Controller  contending that  in  terms  of  an agreement he  had  arrived  at  with Respondent I he took possession of the suit premises on  May 1, 1973 as a tenant under her.  He further contended that he was  a bona fide transferee and that he did not  know  about the  earlier  eviction  proceeding  initiated  against   the erstwhile  tenant.  Consequently, he contended, he  was  not liable  to  be  dispossessed  pursuant  to  the  warrant  of possession.  The Rent Controller overruled the objection  so raised and the appeal preferred by Respondent 2 against  the order  of the Rent Controller was dismissed by Rent  Control Tribunal.   Thereafter he moved the Delhi High Court by  way of a second appeal which was allowed on the ground that as a bona  fide transferee Respondent 2 had independent right  to occupy  the  suit  premises  and  his  right  could  not  be disturbed  either in equity or in law under Section  144  of the  Code  of Civil Procedure.  Hence, this  appeal  by  the original tenant.

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2.   In  arriving  at  its conclusion that as  a  bona  fide transferee  Respondent 2 could not be evicted from the  suit premises  notwithstanding  the  order  for  restitution   of possession passed in favour of the appellant the High  Court equated the status of Respondent 2 with that of a bona  fide purchaser  in  an auction sale.  Then,  drawing  inspiration from  the judgment of this Court in Binayak Swain v.  Ramesh Chandra Panigrahil the High Court held that the 1  AIR 1966 SC 948: (1966) 3 SCR 24: 32 Cut LT 609 370 right  of  a bona fide purchaser or transferee  stood  on  a footing  different from that of the parties to the  suit  as the former had an independent right. 3.   We  are unable to share the view expressed by the  High Court  as  in our considered opinion, the status of  a  bona fide  purchaser in an auction sale in execution of a  decree to  which  he  was  not a party stands  on  a  distinct  and different footing from that of a person who is inducted as a tenant  by  a decreeholder-landlord.   A  stranger  auction- purchaser  does  not  derive  his  title  from  either   the decreeholder   or   the   judgment-debtor   and    therefore restitution may not be granted against him but a tenant  who obtains  possession  from the  decreeholder-landlord  cannot avail  of  the same right as his possession as a  tenant  is derived  from  the landlord.  Even in the  case  of  Binayak Swain, which the High Court relied upon this Court has drawn a distinction between purchase made by a decreeholder and  a stranger  in  auction-sale  by  quoting  with  approval  the following observation made in the case of Zain-ul-Abdin Khan v. Muhammad Asghar Ali Khan 1.               "It appears to their Lordships that there is a               great  distinction between  the  decreeholders               who  came  in and purchased  under  their  own               decree,  which  was  afterwards  reversed   on               appeal, and the bona fide purchasers who  came               in and bought at the sale in execution of  the               decree to which they were no parties, and at a               time when that decree was a valid decree,  and               when  the  order  for the  sale  was  a  valid               order." 4.   In our view the above principle will apply in the  case in  hand as it is the decreeholder who has put Respondent  2 in  possession and, therefore, when the decree has been  set aside he is bound to restore to the judgment debtor what  he gained  under  the decree and  subsequently  transferred  to Respondent 2. 5.   We,  therefore, allow this appeal, set aside the  order of  the High Court and direct restoration of  possession  to the  appellant  in  terms of the order passed  by  the  Rent Controller.  Needless to say such restoration will abide  by the  result of the eviction petition filed by Respondent  1. However, there will be no order as to costs.               (1994) 2 Supreme Court Cases 370 371