DEV RAJ DOGRA AND ORS. versus GYAN CHAND JAIN AND ORS.

Citation: [1981] 3 S.C.R. 174 · Decided: 10-03-1981 · Supreme Court of India · Bench: S. MURTAZA FAZAL ALI

Cited by 1 judgment(s) · cites 2 · see the full citation network in Lexace

Judgment (excerpt)

I 
174 
\ 
A 
DEV RAJ DOGRA AND ORS. 
v. 
GYAN CHAND JAIN AND ORS. 
March JO 1981 
B 
[S. MURTAZA FAZAL ALI, A. VARADARAJAN AND A.N. SEN, JJ.] 
c 
D 
E 
F 
G 
H 
"Code of Civil Procedure 1908, Order XX/ Rules 95 and 96 and Transfer of 
Property -Act 1882, Ss 52, 58 and 6JALJ.fortgage-Consent decree passed in suit 
for money due-property let out by owner to tenants-property sold in court auction 
-Auction purchaser -applying to court for delivery ~of possession of propeny-
Whether entitled to actual physical possession or symbolic possession. 
Order XXI Rules 95 and 96 of the Code of Civil Procedure enable a pur-
chaser of immovable property in a Court sale, to apply for delivery of possession. 
Rule 95 provides for actual physical possession and rule 96 provides for symbolic 
possession. A purchaser wi11 be entitled to physical possession of the property 
purchased if the property sold is in the occupation of the judgment-debtor, of 
some person on behalf of the judgment debtor or some person claiming under a 
title-created by the judgment-debtor subsequent to the attachment of the property. 
If the property sold is in the possession of a tenant or other person entitled to 
occupy the same, symbolic possession is to be made over to the purchaser under 
Rule 96. 
The first respondent was an auction purchaser of property, of which the 
three appellants were _tenants occupying different portions. The property was 
mortgaged by its owner with a Bank. As the amount due was not paid, the Bank 
instituted a Suit , for its· recovery. A decree was ·passed by Consent of the parties 
which provided that if the amount was not paid within two years, the Bank could 
enforce the decree by ·sale of the property. After the compromise decree was 
passed, the owner leased out different portions of the property to the appellants. 
As the owner failed to make payment of the decreetal dues, the property was sold 
by Court auction and the first resrondc:nt, whose bid was the highest, was 
<iec!-a!'ed to be the purchaser of the premises, and the sale in his favour was 
-- confirmed. 
The first respondent/auction-purchaser filed an application und'!r Order XXI, 
Rules 95 and 96 read with Section 151 of the Code_ o_f Civil Procedure in the High 
Court, for delivery of vacant physical possessioµ of the entire property and prayed 
that if it was not possible to grant vacant physical possession of any part of the 
, property, symbolic possession of that part may be granted. This application was 
contes_ted by the three appellants/tenants. 
· 
._ 
A Single Judge of the High C~urt holding that the tenancies in favour of the 
---: appellants having been created after the institution of the suit by the Bank and 
after the passing of the compromise decree in the said suit, and the said tenancies 
would have no effect on the rights acquired by the auction-purchaser in view 
of Section 52 of the Transfer of Property Act, and relying on the Division Bench 
Judgments of the Bombay High Court in Ramdas Popat Patil v. Fakira Patil and 
Ors. AJR 1959 Bom 19 and of the Gujarat High Court in Jagjiwondas a Firm v. 
DEV RAJ DOGRA V. G.C. JAIN 
175 
Lakhiram Haridasmal and Ors. AIR 1968 Guj 193 passed an order for delivery of 
A 
physical possession of the portions in the respective occupation of the appellants. 
In appeal it was contended that the Full Bench decision of the Bombay High 
Court in Anaji Thamaji Patil v. Ragho Bhivraj Patil and Anr. AIR JQ73 Born 75, 
over-ruled the Bombay Division Bench decision and doubted the correctness of the 
Gujarat decision, but the Division Bench of the High Court dismissed the appeal 
accepting the contention put forward on behalf of the respondent-purchaser thai 
the decision of this Court in M/s Supreme General Films Exchange Ltd. v. His 
Highness Mahara;a Sir Brijnath [1976] J SCR 237 concluded the controversy. 
In the appeal to this Court, it was contend on behalf of the appellants 
that: 
(I) Section 52 of the Transfer of Property Act has no application to the 
facts and circumstances of this case as the conditions laid down therein for its 
applicability are not satisfied. 
(ii) The right that the mortgagee had was only to put the property to sale in 
the event of the mortgagor failing to pay the decreetal amount in terms of the 
provisions of the compromise decree, and this right cannot be said to be a right 
B 
c 
to immoveable property directly and specifically in question in the suit. 
D 
(iii) Section 65A of t

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