GURJOGINDER SINGH versus SMT. JASWANT KAUR AND ANR.

Citation: [1994] 1 S.C.R. 794 · Decided: 09-02-1994 · Supreme Court of India · Bench: S. MOHAN, M.K. MUKHERJEE
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Judgment (excerpt)

A 
GURJOGINDER SINGH 
v. 
>--., .. 
SMT. JASW ANT KAUR AND ANR. 
FEBRUARY 9, 1994 
B 
[S. MOHAN AND M.K. MUKHERJEE, JJ.] 
Rent and Eviction/Code of Civil Procedure, 1908: S. 144, 0.9. R.13.-
Ex-parte order of eviction of appellant-tenant-Application for restitution of 
..,,(_ . 
c 
possession allowed-Warrant of possession issued-Objection filed by another 
person claiming himself to be bona fide transferee-in-possession under an 
agreement entered into between him and landlord-High Court holding ob-
jector as a bona fide transferee equating his status with that of a bona fide 
purchaser in an auction sale-Held, status of a bona fide purchaser in an 
auction sale in execution of a decree to which he was not a party stands on 
D a different footing from that of a person who is inducted as a tenant by a 
decree-holder-landlord-Decree-holder was bound to restore to judgment-
debtor subject matter of decree subsequently trans/ erred to third person. 
J._ 
Respondent No.1, in execution of an ex-parte order passed against 
E 
the appellant-tenant, obtained possession of the suit premises. The appel-
lant unsucessfully challenged the ex-parte order under Order 9 Rule 13 of 
the Code of Civil Procedure 1908. In appeal, the Rent Control Tribunal 
set aside the ex-parte order and revived the application for eviction. 
Thereafter, the appellant filed an application under s. 144 of the Code of 
Civil Procedure for restoration of his possession, which was allowed by the 
F 
Rent Controller and warrant for possession was issued. Meanwhile 
respondent No. 2 filed an objection claiming himself to be a bona fide 
transferee-in-possession of the. suit premises in terms of an agreement 
entered into between him and respondent no. 1. It was alleged that he did 
not know about the earlier eviction proceeding initiated against the appel-
G lant. The objection was overruled. The appeal preferred by the Respondent 
No. 2 was dismissed by the Tribunal. He preferred a second appeal which 
was allowed by the High Court, holding that respondent no. 2 was a bona 
fide transferee. Hence the appeal by the original tenant. 
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Allowing the appeal and setting aside the Order of the High Court, 
H this Court 
794 
GURJOGINDER v. SMT. JASWANT (MUKHERJEE, J.) 
795 
HELD: 1.1. The status of a bona fide purchaser in an auction sale in A 
.. ~ 
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 
decree-holder-landlord. A stranger auction purchaser does not derive his 
title from either the decree-holder or the judgment-debtor and, therefore 
restitution inay not be granted against him but a . tenant who obtains B 
possession from the decree-holder-landlord cannot avail of the same right 
as his possession as a tenant is derived from the landlord. [796-H; 797-A] 
\. ~ 
1.2. In the instant case, it is the decree-holder who has put respon-
dent 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 c 
decree and subsequently transferred to respondent No. 2. [797-E] 
-( 
1.3. The High Court was not right in equating the status of respondent 
no. 2 with that of a bona fide purchaser in an auction sale and in holding 
that respondent no. 2 as a bona fide transferee had independent right to 
occupy the suit premises and could not be evicted either in equity or in law D 
not withstanding the order for restitution of possession passed in favour of 
the appellant under s. 144 of the Code of Civil Procedure. [796-F-H] 
Binayak Swain v. Ramesh Chandra Panigrahi & Anr., A.l.R. (1966) 
S.C. 948 and Zain-ul-Abdin Khan v. Muhammad Asghar Ali Khan, (1888) E 
I.L.R. All. 166 P.C., referred to. 
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3307 of 
1983. 
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From the Judgment and Order dated 25.1.1980 of the Delhi High F 
Court in S.A.o. No. 417 of 1978. 
Y ogesh Kapur and AD. Sikri for the Appellant. 
V.C. Mahajan and Rishi Kesh for the Respondents. 
The Judgment of the Court was delivered by 
G 
·~, 
M.K. MUKHERJEE, J. 1. In February 1971 Smt. Jaswant Kaur, the 
respondent No. 1 herein, initiated legal proceeding before the Rent Con-
troller for eviction of her tenant, the appellant herein, and in execution of 
the ex parte order passed therein obtained possession of the suit premises H 
. 
796 
SUPREME COURT REPORTS 
[1994] 1 S.C.R. 
A 
in October, 1971. Immediately thereafter the a
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