Supreme Court Allows Appeal of Original Tenant in Restoration of Possession Under Section 144 CPC, Rejecting Bona Fide Transferee Claim. Court Holds Tenant Inducted by Decree-Holder Landlord Cannot Resist Restitution When Eviction Decree Is Set Aside, Distinguishing Such Tenant from Stranger Auction Purchaser.

Civil appeal concerning restitution of possession under Section 144 of the Code of Civil Procedure after an ex-parte eviction order was set aside.

The appellant sought restoration of possession of the suit premises under Section 144 CPC after the ex-parte eviction order was set aside; respondent No.2 opposed restoration claiming independent right as a bona fide transferee.

Respondent No.1 obtained an ex-parte eviction order and possession in October 1971; after the order was set aside, the appellant applied for restoration of possession; respondent No.2 objected claiming he had been inducted as a tenant by respondent No.1 on May 1, 1973 and was a bona fide transferee.

The Rent Controller allowed the appellant's restoration application and overruled respondent No.2's objection; the Rent Control Tribunal dismissed respondent No.2's appeal; the Delhi High Court allowed the second appeal holding that respondent No.2 as a bona fide transferee had an independent right and could not be dispossessed under Section 144 CPC; hence the present appeal to the Supreme Court.

Whether a tenant inducted by a decree-holder landlord after an ex-parte eviction order, which is subsequently set aside, can resist restoration of possession under Section 144 of the Code of Civil Procedure on the ground of being a bona fide transferee. Whether the status of a bona fide purchaser in an auction sale is distinct from that of a tenant inducted by a decree-holder landlord, affecting the applicability of restitution.

Respondent No.2 contended that he took possession of the suit premises on May 1, 1973 as a tenant under respondent No.1 pursuant to an agreement, was a bona fide transferee, had no knowledge of the earlier eviction proceeding, and therefore was not liable to be dispossessed under Section 144 CPC. The appellant sought restoration of possession under Section 144 CPC after the ex-parte eviction order was set aside, arguing that since the decree was reversed, the possession obtained under it must be restored.

A tenant who obtains possession from a decree-holder landlord derives his title from the landlord and cannot claim the status of a bona fide purchaser in an auction sale, which is available only to a stranger who purchases at a sale in execution of a decree to which he was not a party. When the decree under which possession was obtained is subsequently set aside, the decree-holder is bound to restore to the judgment-debtor what he gained under the decree, including possession transferred to a tenant. Therefore, restitution under Section 144 of the Code of Civil Procedure can be ordered against such a tenant.

It appears to their Lordship that there is a great distinction between the decree-holders who came in and purchased under their own decree, which was afterwards reversed on appeal, and the bona fide purchasers who come in and brought 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. In our view the above principle will apply in the case in hand as it is the decree-holder who has put the respondent No. 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 the respondent No. 2. 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.

In February 1971, respondent No.1 initiated eviction proceedings before the Rent Controller against the appellant. In October 1971, respondent No.1 obtained possession of the suit premises under an ex-parte order. The appellant filed an application under Order 9 Rule 13 CPC to set aside the ex-parte order, which was dismissed by the Rent Controller but later allowed by the Rent Control Tribunal, reviving the eviction proceeding. The appellant then applied under Section 144 CPC for restoration of possession, which was allowed by the Rent Controller on May 13, 1977 and a warrant for possession was issued. Before execution, respondent No.2 filed an objection claiming he was a bona fide tenant inducted by respondent No.1 on May 1, 1973. The Rent Controller overruled the objection; the Rent Control Tribunal dismissed the appeal. Respondent No.2 filed a second appeal before the Delhi High Court, which was allowed on the ground that he was a bona fide transferee with an independent right. The appellant then filed the present appeal before the Supreme Court.

• Code of Civil Procedure, 1908: Order 9 Rule 13, Section 144