Supreme Court Allows Tenant's Appeal in Restitution Matter Under Section 144 CPC. Decree-Holder Landlord Bound to Restore Possession to Judgment-Debtor Tenant After Underlying Ex Parte Eviction Order Was Set Aside.

Case Note & Summary

Background: The dispute concerned restitution of possession of premises under Section 144 of the Code of Civil Procedure, 1908 following the setting aside of an ex parte eviction order. The appellant was the original tenant; respondent 1 was the landlord who initiated eviction proceedings in February 1971; respondent 2 was the person subsequently inducted as tenant by respondent 1 and claimed to be a bona fide transferee. Facts: In February 1971, respondent 1 filed an eviction petition against the appellant before the Rent Controller. An ex parte order of eviction was passed and possession of the suit premises was recovered by respondent 1 in October 1971. The appellant challenged the ex parte order under Order 9 Rule 13 CPC, which was dismissed by the Rent Controller, but the Rent Control Tribunal on appeal set aside the ex parte order and revived the eviction proceeding. The appellant then sought restitution under Section 144 CPC; the Rent Controller by order dated May 13, 1977 allowed restoration and issued a warrant for possession. Before possession could be taken, respondent 2 objected, contending that he had taken possession of the premises on May 1, 1973 as a tenant under an agreement with respondent 1, that he was a bona fide transferee without knowledge of the earlier eviction proceeding, and that he could not be dispossessed. The Rent Controller overruled the objection; the Rent Control Tribunal dismissed respondent 2's appeal. Respondent 2 then filed a second appeal before the Delhi High Court, which allowed it, holding that as a bona fide transferee respondent 2 had an independent right to occupy the premises and could not be disturbed under Section 144 CPC, equating his status to that of a bona fide purchaser in an auction sale and relying on Binayak Swain v. Ramesh Chandra Panigrahil. Legal Issues: Whether a tenant inducted by a decree-holder landlord, after obtaining possession under an ex parte decree that is later set aside, could resist restitution under Section 144 CPC by claiming to be a bona fide transferee. Arguments: Respondent 2 argued that he was a bona fide transferee, had taken possession under an agreement, lacked knowledge of earlier proceedings, and had independent right akin to a stranger auction purchaser. The appellant contended that respondent 2 derived title from the decree-holder landlord and therefore could not claim protection once the decree was set aside. Court's Analysis: The Supreme Court rejected the High Court's analogy, holding that 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 a tenant inducted by a decree-holder landlord. A stranger auction purchaser does not derive title from either the decree-holder or the judgment-debtor, and restitution may not be granted against him; but a tenant who obtains possession from the decree-holder landlord derives his possession from the landlord and cannot avail the same right. Even in Binayak Swain, the Court had drawn the distinction between decree-holders who purchased under their own decree and bona fide purchasers at sale in execution, quoting Zain-ul-Abdin Khan v. Muhammad Asghar Ali Khan. Applying that principle, the Court held that because the decree-holder put respondent 2 in possession, when the decree was set aside, the decree-holder was bound to restore to the judgment-debtor what he gained under the decree and subsequently transferred to respondent 2. Decision: The appeal was allowed, the High Court order was set aside, and restoration of possession to the appellant was directed in terms of the Rent Controller's order; restoration was to abide by the result of the eviction petition filed by respondent 1; no order as to costs.

Headnote

Issue of Consideration

Final Decision

Appeal allowed; High Court order set aside; restoration of possession to appellant in terms of Rent Controller's order; restoration to abide by result of eviction petition filed by Respondent 1; no order as to costs.

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