Judgment:
V.H. Bhairavia, J.
1. This is a classic sample of litigation arisen from execution proceeding under Order 21 of Civil Procedure Code. In this matter, ex-parte decree passed by the City Civil Court. Bombay in Summary Suit No. 1853/65 where one Shri Chunilal Hajarimal Ranavat obtained a money decree against one Shri Hassan Parisian Hoosein. As the said judgment-debtor Hassan Parisian Hoosein had failed to pay the decretal amount, the property known as 'Duke of York Stores and Restaurant ' situated at 150, Colaba Chambers, Bombay proclaimed to be sold in public auction under the Court's order. The public auction sale of attached property was held on 4-4-1966. The respondents Nos. 9 and 10 being the highest bidders have purchased the said property for Rs. 78,000/-. A sale certification was issued in favour of respondents Nos. 9 and 10 by the City Civil Court, Bombay on 23-9-1968. A Chamber Summons taken out by the judgment-debtor Shri Hassan Parisian Hoosein for setting aside the auction sale of 'Duke of York Store & Restaurant' also came to be dismissed by the Court on 23-7-1968.
2. However, it reveals from the record that the said 150, Colaba Chambers alongwith other properties were belonging to a former stores Sir Currimbhoy Ibrahim. Trust vested in the official trustee of the Maharashtra State and the judgment-debtor Shri Hussain Parisian Hoosein was a tenant of the said premises, situated at 150, Colaba Chambers, Bombay, and he was running 'Duke of York Stores and Restaurant' in partnership with one Mirza Nassurulla since 1954. It reveals that the said property, situated at 150, Colaba Chambers, Bombay alongwith other properties declared to be an evacuee property by the Supreme Court in 1978 and since then, the said property came into the administration of Custodian of Evacuee Property-cum-Settlement Commissioner.
3. It reveals that a writ of possession was issued against the judgment-debtor Hussain P. Hoosein on 31-10-1968 in favour of the auction purchasers i.e. respondents Nos. 9 and 10. However it reveals that the writ of possession was obstructed by different occupants of Flat No. 16 at various stages by filing the suits in the courts of Law. The last suit being Suit No. 1879/70 filed by one Mirza and Kasil in Bombay City Civil Court came to be dismissed on 3-7-1981. Several orders passed in the Court proceedings are on record.
4. However, a very important and relevant facts reveals from the record 'Exhibit 46' that a Custodian of Evacuee Property-cum-Settlement Commissioner has given the judgment and passed order in Enquiry Proceedings under section 19 of the Displaced Persons Act r/w. section 9 of the Administration of Evacuee Property Act, 1950 on 28-12-1981 and held the three occupants to be tenants of Flat No. 16, situated at 150, Colaba Chambers, Colaba, Bombay. It has been observed thus :-
'Flat No. 16 of Colaba Chamber with carpet area of 2088 sq.ft. be divided in 3 flats as 16-A; 16-B and 16-C, as per the present possession and occupation of 3 persons. Premises in possession of Smt. Batra will be known as flat No. 16-A with area 1216 sq.ft. while premises in possession of Shri Hasan Parsyan that is area of 492 sq.ft. will be known as flat 16-B servants quarters at mezzanine floor is separate with separate entrance. This area of 300 sq. ft. will be known as flat No. 16-C and it is in possession of Haji Abdul Kadar Haji Mohammed. Entrance to flat No. 16-A will be from front side while entrance to flat No. 16-B will be from the rear side.
Shri Batra should construct partition wall and separate out his flat from flat No. 16-B.
Tenancy of Smt. Batra be regularized as stated in paragraph 8 about in addition to the normal conditions of tenancy.
Both Smt. Batra and Shri Haji Abdul Kadar should inform the Court of above decision if cases are pending in Small Causes Court.
As indicated in paragraph 7, notice should be given to Hassan Parsyan.'
Under the said judgment and order, Mrs. Shama Parvesh chandra Batra (the present appellant-plaintiff) held to be in possession of Flat. No. 16A. In para 8 of the said order (Exhibit- 6) it is observed thus:-
'In case of Smt. Shama Batra. she came to be in occupation by agreement of leave and licence dated 20-10-1970 for part premises admeasuring 1216 sq.ft. and occupying front portion of the flat on Colaba Road side. She is staying over there for last 11-12 years. She has ration card, T.V. and radio licences, Bank Account and Electric bills paid by her. All this evidence shows that she is in occupation and possession of the premises for residential purpose. Injunction of the Small Cause Court subsists. She also gets a benefit of amended enactment to section 15A of the Bombay Rent Act as her leave and licence agreement is prior to 1-2-1973. In view of these facts it is necessary to regularize her tenancy. The total rent arrears of the entire flat are to the tune of Rs. 18,880/- as on 31-12-1981 and on area calculation basis rent arrears of the part premises of section 10-A of the Bombay Rent Act, 10% of the rent should be increased at the time of regularization of the tenancy and therefore, it is ordered that Smt. Batra should pay arrears of rent Rs. 11,840.00/- + 10% increase that is Total Rs. 13,024/- as on arrears of the rent of the part premises as on 31-12-1981, from 1-1-1982 onwards she should pay rent of her flat as Rs. 162.80 (inclusive of 10% increase) to the Custodian regularly and obtain the receipts thereof.'
5. It is a quasi-judicial order passed under section 19 of the Displaced Persons Act r/w. section 9 of the Administration of Evacuee Property and it has not been challenged by the auction purchaser-respondent No. 9; Thus, it is a judicial order within the meaning of section 45 of the Administration of Evacuee Property Act, 1950.
6. It is the case of the appellants-plaintiffs that despite the facts stated above, an execution application was filed by the auction purchaser-respondent No. 9 on 14-6-93 and the writ of possession was issued by the Court under Order 21, Rule 96 of the Civil Procedure Code on 4-10-93. The auction purchaser-respondent No. 9 with the help of the Sheriff's Bailiff and the appellants tried to execute the writ of possession at Flat No. 16A, Colaba Chambers on 27-10-93 which was obstructed by the husband of Shri Shama Batra, appellant plaintiff but it is stated that with the help of the police, the Sheriff's bailiff tried to demolish the wall separating Flat No. 16B, Duke of York Restaurant and forcibly tried to take possession of the Flat No. 16B. Therefore, the appellant-plaintiff immediately filed a suit in the City Civil Court being S.C. Suit No. 6757/93 and obtained injunction against writ of possession. On the pleadings of the plaintiffs, the following issues were framed :-
1. Do the plaintiffs proved that the suit premises allegedly numbered as 16/A are separate and distinct from premises No. 16 since before 26-7-65 where defendants 1 to 8 and 11 to 12 were having interest ?
2. Does Defendant No. 9 prove that the suit is not maintainable as the proper forum would be the executing Court under section 47 of the Civil Procedure Code ?
3. Do the plaintiffs prove that the execution against the defendants in Suit No. 1853 of 1965 was barred by time when defendant No. 9 claimed to have purchased the property in auction?
After recording the evidence, the issues decided against the plaintiffs and ultimately, the suit came to be dismissed by the judgment and order of the learned Judge, City Civil Court, Bombay passed on 25th April, 1996. This appeal, therefore, is directed against the impugned judgment and order.
7. It has been contended by the learned Counsel Mr. Shah on behalf of the appellants that-
(i) execution of decree for possession is barred by limitation under Article 138 of the Limitation Act and a writ of possession issued under Order 21, Rule 96 is not binding to the appellants;
(ii) The suit premises is not the same premises mentioned in the writ of possession dated 4-10-93.
(iii) In the writ of possession, the description of property is shown as 150, Colaba Chambers, Bombay.
(iv) The writ of possession was issued under Order 21, Rule 96 dated 4-10-93 and therefore, the respondent No. 9 is not entitled for physical possession but only for symbolic possession of the suit property and the respondent No. 9 has fraudulently procured the writ of possession by inserting certain words and sentences in the said writ of possession.
8. The learned Counsel Mr. Shah relied on the following authorities :-
Fakirappa Jotappa Nalemani v. Ningappa Sidlingappa Matti : AIR1943Bom265
Kiran Sigh and others v. Chawan Paswan and others, : [1955]1SCR117
Tincourie Mazumdar and another v. Srikishan Choud Boral and another, : AIR1955Cal369
Province of Bengal v. Probash Chandra Ghose, : AIR1955Cal400
Dev Raj Dogra v. Gyan Chand Jazin, : [1981]3SCR174
Ganpat Singh v. Kailah Shankar and others, : [1987]3SCR355
Ameena Bi, Appellants v. Kuppuswami Naidu and others, Respondents, : AIR1993SC1628
As against this, the learned Counsel Mr. Gokhale appearing on behalf of the respondent No. 9 supported the judgment and order of the learned trial Judge and submitted that the decree is not barred by limitation. It has been contended that the decree is binding on the plaintiffs as the property was already under attachment since 1964 and the possession of the plaintiffs claimed to be after the attachment. The learned Counsel Mr. Gokhale relied on certain authorities in support of his arguments as follows :-
A.I.R. 1981 S.C. 1383
: AIR1971SC996
: [1987]3SCR355
A.I.R. 1959 S.C. 809
: AIR1973Bom148
9. Having regard to the facts and circumstances of this case, it would be necessary to point out the legal position while executing the ex-parte decree not by the decree holder but through the auction purchaser. In Dev Raj Dogra and others v. Gyan Chand Jazin and ors., reported in : [1981]3SCR174 , it has been held that :-
'Civil P.C. (5 of 1908 ), Order 21, Rule 95 and 96- Transfer of Property Act (1882), section 52, 58 and 65-A- Suit on mortgage decreed in terms of compromise Nirtgagir to repay amount within specified date -Parts of disputed premises leased Default in repayment in terms of decree property sold in auction- Application by auction-purchaser under Order 21, Rule 95 and 96 for possession - Held, only symbolic possession could be given................ After the decree had been passed, the judgment-debtor leased out portions of premises. There was failure to pay decretal dues in terms of consent decree and the premises were sold in public auction. One G purchased the properties and the sale was confirmed in his favour. He made an application under Order 21, Rule 95 and 96 for possession of properties from the tenants. It was argued on behalf of the tenants that section 52 T.P. Act had no application to the case. On the other hand the contention on behalf of G was that section 52 applied to the case and the tenancies being contrary to section 52 were illegal. It was also contended that section 65-A did not control section 52.
Held, that G the auction-purchaser who was 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, was not entitled to recover physical possession from the appellants-tenants in view of the provisions contained in Order XXI, Rule 95, and the auction-purchaser must be held to be entitled to symbolic possession in terms of the provisions contained in Order XXI, Rule 96 in respect of the portions in occupation of the appellants-tenants.
It may be true that section 52 and section 65-A of the Transfer of Property Act operate in different spheres. Section 65-A deals with the powers of the mortgagor to grant a lease of the mortgaged property, while the mortgagor remains in lawful possession of the same. Section 52 deals with cases of transfer of or otherwise dealing with any immovable property after any suit or proceeding in which any right to the said immovable property is directly and specifically in question, has been filed. It is also to be noted that section 65-A which came to be inserted by the Amending Act, 1929, is neither made subject to nor notwithstanding the provisions contained in section 52 of the Act. Section 52 will, however, be only applicable, if the requirements of the said section are satisfied.
In the instant case an outside auction-purchaser is seeking recovery of the physical possession of the property purchased by him at the auction from the appellants-tenants who are in possession of different portions of the said premises as tenants of the said portions. The auction-purchaser in the instant case was not the mortgagee and he was no party to the suit in which the compromise decree was passed. Section 52 in clear terms speaks of the rights of the parties to the suit or proceeding............The auction-purchaser derives his right to obtain possession only after the sale in his favour has become absolute and sale certificate has been obtained by him. The mode and manner of obtaining such possession are regulated by Rule 95 and 96 of the Code of Civil Procedure. It is of interest to note that in the instant case, the auction-purchaser had applied for obtaining possession under Rule 95 which provides for actual possession and also under Rule 96 which provides for symbolic possession. We have earlier set out the provisions of these two rules. In the facts and circumstances of the case, 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 Order XXI, Rule 95, and the auction-purchaser must be held to be entitled to symbolic possession in terms of the provision contained in Order XXI, Rule 96 in respect of the portions in occupation of the appellants.'
In the case of Majeti Ramakrishnayya and anr. v. Pulavarti Venkata Subbna Rao and ors., : AIR1954Mad831a , it has been held thus :-
'Limitation Act (1908), Arts. 180 and 182- starting point.
It is true that if the application for delivery of possession by the auction-purchaser became infructuous for no fault of his but by reason of some obstruction caused either by the judgment-debtor or by a third party, and there is no judicial disposal of that application, the application can be revived by a subsequent application. The second application in such an event cannot be treated as barred by limitaion, as it was merely intended to revive and continue the previous application, which was not finally disposed of. But the position is altogether different where owing to the default or laches of the auction-purchaser himself a previous application could not have been carried into effect and was therefore dismissed.
It depends on the facts of each case whether or not there was default on the part of the auction-purchaser or whether there was no judicial disposal of the application for no fault of the applicants.'
10. In view of the facts and circumstances of this case and the contentions taken by both the parties, one very important fact requires to be considered and to give legal weight to the admitted fact that the suit property declared to be an evacuee property being administered under the Administration of Evacuee Property Act, 1950. It is a special Act. The order passed by the competent authority i.e. Custodian of Evacuee Property and Settlement Commission for Compensation Pool Properties, Maharashtra State, Bombay on 28th December, 1981, Exhibit 46, is a judicial order under section 45 of the Administration of Evacuee Property Act, 1950 and it is binding to all who claimed to be interested in the suit property and the civil proceeding is barred by section 46 of the Act which reads as under :-
46. Save as otherwise expressly provided in this Act, no civil or revenue Court shall have jurisdiction -
(a) to entertain or adjudicate upon any question whether any property or any right to or interest in any property is or is not evacuee property; or
(c) to question the legality of any action taken by the Custodian-General or the Custodian under this Act; or
(d) in respect of any matter which the Custodian-General or the Custodian is empowered by or under this Act to determine.
The order passed under this provision is fully protected.
Under the order Exhibit 46, it has been declared the appellant-plaintiff as tenant since 1970 of the suit premises under the amended section 15-A of the Rent Act. This order is binding on the respondent. The alleged writ of possession issued under Order 21, Rule 96 dated 4-10-1993 is not binding to the plaintiffs and the writ of possession could not be executed against the appellants-plaintiffs. Her right is fully protected under Order Exhibit 46.
11. In the result, the appeal is allowed. The judgment and order dated 25-4-96 is set aside. The respondents are restrained from taking possession from the appellants.
12. It is stated at the Bar by the learned Counsel Mr. Shah for the appellants that at present, the suit premises is in the custody of the Court Receiver. It is also stated that some amount was deposited with the Court Receiver as per the order of the trial Court. Therefore, the Court Receiver may be directed to hand over the possession of the suit premises as well as the amount which was deposited with the Court Receiver to the appellants. In view of the submission made by the learned Counsel for the appellants, the Receiver is directed to hand over the possession of the suit premises and the amount which was deposited with the Court Receiver to the appellants forthwith. However the learned Counsel Mr. Gokhale appearing on behalf of the respondents prayed for stay of the operation of this order for four weeks. Therefore, operation of this order is stayed for four weeks and the Receiver shall act thereafter accordingly as per the directions.