In re: Md. Shoaib v. Akhtar Hossain — 1991 DIGILAW 141 (CAL)

ORDER: The facts leading to the present revisional application are the following :- JUDGMENT : - The opposite party no. 3 got a suit for eviction and recovery of possession of the disputed shop room decreed ex-parte against the deceased father of the opposite parties no. 1 and 2 on 208.77 and obtained possession of the same on 30.5.79 by executing the decree. On the very following day viz., 31.5.79 the opposite party no. 3 inducted the petitioner no 1 and 2 as tenants of the said shop room with effect from 1.6.79. The opposite parties no. 1 and 2 applied for setting aside the ex-parte decree under Order 9 Rule 13 of the Civil Procedure Code on 4.6.79. This application was dismissed on 24.8.79 but the appeal there from was allowed on 94.85. Thereafter on 8.11.85 the opposite parties no. 1 and 2 applied for restoration of possession of the shop room under s. 144 of the Civil Procedure Code only against the opposite party no. 3 and this application-registered as Misc. Case no. 384 of 1985-was allowed on 4.2.86 and the opposite party no. 3 was directed by the Court to deliver possession of the shop room to the opposite parties no. 1 and 2. The opposite parties no. 1 and 2 put this order to execution. The present petitioners instituted Suit no. 162 of 1976 in the Original Side of this Court against the opposite parties no. land 2 for declaration that they were tenants of the shop room and also for an order of injunction restraining the opposite parties no. 1 and 2 from disturbing with their possession in pursuance of the order of restitution. In this suit the petitioners obtained an order of ad-Interim injunction on 23.8.86. The opposite parties no. 1 and 2 filed an application for vacation of the said order which was rejected. The opposite parties no. 1 and 2 preferred an appeal being Civil Appeal no. 132 of 1986. A Division Bench of this Court holding that the petitioners were representatives within the meaning of s. 47 of the Civil Procedure Code, allowed the said appeal. Thereafter the petitioners filed an application under s. 47 of the Civil Procedure Code. The learned Judge found that the petitioners were representatives of the opposite party no. 132 of 1986. A Division Bench of this Court holding that the petitioners were representatives within the meaning of s. 47 of the Civil Procedure Code, allowed the said appeal. Thereafter the petitioners filed an application under s. 47 of the Civil Procedure Code. The learned Judge found that the petitioners were representatives of the opposite party no. 3, that their tenancy would also be hit by s. 52 of the Transfer of Property Act and that in the circumstances stated they were not entitled to get any relief under s. 47 of the Civil Procedure Code. Hence, this revisional application. 2. The conclusions of the Division Bench of this Court in Civil Appeal no. 132 of 1986 have special bearing in this case and they may be summarized as follows: "Held: 1. Following Mahijibhai Mohanbhai Barat, AIR 1965 SC 1477 that an application under s. 144 had to be treated as an application in execution of the appellate decree. 2. An order passed under s. 144 is a decree and all questions arising between the parties to such an order relating to execution, discharge or satisfaction of such a decree will have to be determined by the Court executing the same under Section 47 of the Code. In the facts of the instant case all questions relating to restoration or restitution of possession of the said room in dispute to the appellants are to be determined in the proceedings under s. 144 and not by a separate suit. The proceeding under s. 144 was in the nature and character of execution by way of restitution and it became available to the appellants by reason of the appellate order' in the appeal from order dismissing opposite party's petition under Order 9 Rule 13 of the Civil Procedure Code. 3 The petitioners as tenants of opposite party no. 3 are assignees/representative-in-interest of the opposite party no. 3 and as such they come within the mischief of s. 47. Therefore, the questions regarding operation of the order passed in s. 144 proceeding and applicability thereof so far as they are concerned should and ought to be agitated in the execution proceedings. 4. The petitioners are not entitled to challenge either the appellate order dated 24.8.81 (9.4.85) or the order dated 4.2.86 since they were not parties to the ejectment suit. 4. The petitioners are not entitled to challenge either the appellate order dated 24.8.81 (9.4.85) or the order dated 4.2.86 since they were not parties to the ejectment suit. All that remains open 10 the petitioners is to contend that irrespective of the said order dated 24.8.81 and 4.2.86 (a) they have acquired a valid and independent title to the suit room which remained unaffected by the said orders and/or (b) further that they have acquired a special equity in their favour by reason of which the said orders could not be enforced against them in execution." 3. Questions such as : (a) whether the respondents no. 1 and 2 are purchasers for value without notice; or (b) whether the petitioners have acquired their tenancy in respect of a property which is lis pendens; or (c) whether the petitioners can claim any special equity against the implementation of the order of restitution; were left open. 4. The findings of the learned Judge in the impugned order are the following :- 1. Since the petitioners no. 1 and 2 are the representatives of the decree holder (opposite party no. 3) within the meaning of s. 47 of the Civil Procedure Code, they are bound by the order dated 4.286 passed in the restitution case. 2. It is true that no proceeding was pending on 31.5.79, the date on which the petitioners were inducted by opposite party no. 3. The application under Order 9 Rule 13 of the Civil Procedure Code was filed on 4.6.79. But since the ex-parte decree was set aside, the pal ties were placed in a position in which they were before the passing of the ex-parte decree Thus s. 52 of the Transfer of Property Act was definitely applicable and the petitioners being legal representatives of the opposite party no. 3, the creation of their tenancy was hit by lis pendens. 5. All these findings of the learned Court below have been challenged in this revision. The points taken in objection are the following :- 1. The petitioners took settlement of the suit room bono fide and without notice of all the previous proceedings between the opposite parties. The order obtained in s 144 of the Civil Procedure Code to which they were not parties cannot, therefore, affect them. 2. The points taken in objection are the following :- 1. The petitioners took settlement of the suit room bono fide and without notice of all the previous proceedings between the opposite parties. The order obtained in s 144 of the Civil Procedure Code to which they were not parties cannot, therefore, affect them. 2. The tenancy of the petitioners will not be hit by s. 52 of the Transfer of Property Act. 3. The petitioners can be evicted only under the provisions of the West Bengal Premises Tenancy Act. 6. As for the applicability of the order passed under s. 144 of the Civil Procedure Code the learned Advocate cited Sham Lal v. Smt. Jaswant Kaur AIR 1980 Delhi 111 (DB). It is observed here that the right of bona fide purchaser or transferee being an independent right it cannot be disturbed in equity or in law and that even s. 144 of the Civil Procedure Code does not warrant it. We respectfully disagree from this view. Bona fide transferee or no, as transferees the petitioners were no better than representatives of the opposite party no 3. Since they were representatives they would be bound by the order passed in s. 144 proceeding, notwithstanding that they were not parties to the said proceeding, The possession of the opposite party no. 3 in the suit room and his right to let out the same on the day the petitioners were inducted were subject to reversal of the ex-parte decree and subsequent restitution. Assignee from a Decree Holder cannot be in a position better than his assignors Sagore Mandal v. Mafijuddin, 24 CWN 50. The petitioners could not therefore, claim an estate different from or better than that of their assignor. Besides when the ex-parte decree was set aside, the relationship of landlord and tenant between the opposite parties came to life again. With the position of the opposite parties no. 1 and 2 restored as tenants of the disputed premises, the tenancy created in favour of the petitioners lost all value and the petitioners vis-a-vis the opposite parties no. 1 and 2 became trespassers with regard to the disputed premises for, clearly, there could not be two sets of tenants in respect of the self same premises at the same time. Whatever the interest of the petitioners it cannot defeat the prior interest of the opposite parties no. 1 and 2 became trespassers with regard to the disputed premises for, clearly, there could not be two sets of tenants in respect of the self same premises at the same time. Whatever the interest of the petitioners it cannot defeat the prior interest of the opposite parties no. 1 and 2 Notwithstanding that the petitioners had acquired this interest bona fide without knowledge of the proceedings between the opposite parties. Gopilal v. Jamuna Prasad, AIR 1954 Pat. 36 where it was held that s. 144 cannot be applied to a bona fide transferee for value without notice cannot apply here for the reasons stated. Besides, the petitioners in this case are not also transferees for value. In Rajjabali Khan v. Faku Bibi, AIR 1932 Cal. 29 it was held that s. 144 applies to parties or their representative and not strangers. This decision help the case of the opposite parties no. 1 and 2 since the petitioners were not strangers; they were representatives of the opposite party no. 3. We would rather follow the principle laid down in Jugdish Lal v. M.E. Pereira, AIR 1977 Delhi 12 where it was observed that transfer from party who had obtained advantage of an erroneous decree would be within the reach of the Court whether such transferees were acting in good faith and without any knowledge of the earlier proceedings or not. The decree obtained in the present case was set aside and it is also not disputed that the opposite party no 3 got possession of the disputed premises by execution after the death of the original tenant and without substituting his legal representatives, i.e., the opposite parties no. 1 and 2 in his place. The principle, therefore, applied to the facts of this case with full force. 7. The decision of the learned Court below to the effect that the petitioners tenancy was hit by s. 52 of the Transfer of Property Act also must be upheld and for the reasons given by him. A proceeding under Order 9 Rule 13 of Civil Procedure Code may be an original proceeding as observed in Salil Kumar v. Sailendra. AIR 1960 Cal. 203 . But that does not do away with the fact that when such a proceeding ends in favour of the petitioners, the suit must be taken to be continuing all throughout. A proceeding under Order 9 Rule 13 of Civil Procedure Code may be an original proceeding as observed in Salil Kumar v. Sailendra. AIR 1960 Cal. 203 . But that does not do away with the fact that when such a proceeding ends in favour of the petitioners, the suit must be taken to be continuing all throughout. Agreeing with the learned Court below it must be held, therefore, that the creation of the tenancy in favour of the petitioners in this case was hit by s. 52 of the Transfer of Property Act. 8. Now to the third and the last point. It is urged that the petitioners being premises tenants they could be evicted only by restoration to the relevant provisions of the West Bengal Premises Tenancy Act. This argument would have been valid had this been a suit instituted by the opposite party no. 3 for eviction of the petitioners from the disputed premises. The argument does not apply here since the opposite parties no. 1 and 2 have not filed the execution case for eviction of their tenants from the disputed premises; they have tiled it for recovering possession of the disputed premises as tenants thereof by evicting from it the landlord or his representatives whoever be in possession thereof. For the opposite parties no. 1 and 2 there cannot be any question of resorting to the provisions of the Premises Tenancy Act in their bid to get back possession of the disputed room. This argument also avails the petitioners nothing. 9. In view of what has been stated above it becomes quite apparent that the present petitioners cannot resist the execution of the order obtained by the opposite parties no. 1 and 2 under s. 114 of the Civil Procedure Code. Their application under s. 47 of the said Code has been rightly rejected by the learned Court below. The decision of the learned Court below is hereby rejected. Application rejected.