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TMI Blog1981 (3) TMI 263X X X X Extracts X X X X X X X X Extracts X X X X ..... th regard to the facts material for the purpose of appeal. Des Raj Agarwal, the sole proprietor of Raj Kumar Co., mortgaged the 2 storeyed Bungalow No. 5-C/96, WEA. Karol Bagh, New Delhi (herein-after referred to as the premises) along with various other properties with Oriental Bank of Commerce (hereinafter referred as the Bank) on 28.6.1960 by deposit of title deeds. The Bank filed a suit to recover its dues on the mortgage on 6.11.1962. On 3.9.1963, a decree was passed by consent of the parties in favour of the plaintiff-mortgage for the sum of ₹ 479177.49 with costs and future interest at 6% till realisation of the decretal amount. The other relevant terms of the consent decree which are contained in Clauses 8 and 9 of the compromise are to the following effects: 8 . If the judgment debtor pay Rs . 479177 .49 less costs and interest as after March, 1961 within two years of the decree, then whole of the decree shall stand satisfied . 9 . If full amount of the decree with costs and interest is not paid as agreed above, within two years of the decree, then the decree -holder shall be free to enforce the decree against the property mortgaged which shall be so ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 52 of the Transfer of Property Act. The Learned Judge had relied on the judgment of a Division Bench of the Bombay High Court in the case of Ramdas Popat Patil v . Fakira Pandu Patil and Ors . AIR1959Bom19 and also on decision of Division Bench of the Gujarat High Court in case Jagjiwandas a Firm v . Lakhiram Haridasmal and Ors . AIR1968Guj193 . The tenants preferred an appeal against the said order of the learned Judge. Before the Division Bench of the Delhi High Court, it was urged on behalf of the tenants that the decision of the Division Bench relied on by the learned Single Judge had been subsequently over-ruled by a decision of the Full Bench of the Bombay High Court in case of Anaji Thamaji Patil v . Ragho Bhivraj Patil and Anr . AIR1973Bom75 and the correctness of the decision of the Gujarat High Court had also been questioned in this Full Bench judgment. Various other arguments were also advanced before the Division Bench on behalf of the tenants and the said arguments have been noted in the judgment of the Division Bench. The Division Bench however, dismissed the appeal, accepting the contention put forward on behalf of the respondent auction-purchaser tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has made it manifestly clear that the mortgagor will be entitled to grant a lease of the property in conformity with the provisions of the said Section and he submits that when a mortgagor grants a lease of the mortgaged property in terms of the provisions of Section 65-A of the Transfer of Property Act, it cannot be said that the granting of any such lease affects the right of the mortgagee. Mr. Bhatia has next contended that in any event Section 52 makes provisions for the parties to the suit or proceeding and can have no application to any outside auction purchaser who is not a party to the suit or proceeding and who only acquires his right after the sale in execution of the decree has been confirmed. Mr. Bhatia argues that the judgment of the learned Single Judge of the Delhi High Court must be held to be wrong, as the learned Single Judge came to his decision relying on the decision of the Division Bench of the Bombay High Court in the case of Ramdas Popat Patil v. Fakira Pandu Patil and Ors. (supra) and the decision of the Gujarat High Court in the case of Jagjiwandas a Firm v. Lakhiram Haridasmal and Ors. (supra) and the decision of the Division Bench of the Bombay High Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the mortgaged property after the creation of the mortgage but before the institution of suit, while, on the other hand Section 52 makes provisions for cases of transfer or otherwise dealing with any property after the institution of a suit or proceeding and Section 52 imposes a complete ban on the transfer of any kind or dealing with immovable property except with the authority of the Court during the pendency of the suit or proceeding in which any right to immovable property is directly or specifically in question so that the rights of any party may not be affected when any decree or order is passed in the suit or in the proceeding. Mr. Kakkar has referred to Section 58 of the Transfer of Property Act in support of his contention that in case of a mortgage, there is a transfer of an interest in specific immovable property for the purpose of securing of the payment of money advanced or to be advanced by way of loan. He has argued that in a suit for the enforcement of mortgage it must, therefore, be held that the right to immovable property is directly and specifically in question; and he has further argued that after the decree for sale is passed in a mortgage suit the mortgagor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eme General Films Exchange Ltd. v. His Highness Maharaja Sir Brijnath Singhji Deo of Maihar and Ors. (supra) It is the submission of Mr. Kakkar that the decisions of this Court in the case of Supreme General Films Exchange Ltd. (supra) and also in the case of Jayaram Muda-liar (supra) conclude the question involved in the present appeal and the Division Bench rightly dismissed the appeal relying on the said decisions. 5. Before we proceed to deal with the respective contentions of the parties, it will be convenient to consider the material provisions of the relevant statutes to which we were referred in the course of submissions made from the bar. Section 52 of the Transfer of Property Act reads as follows: During the pendency in any Court having authority within the limits of India excluding the State of Jammu and Kashmir or established beyond such limits by the Central Government of any suit or proceeding which is not collusive and in which any right to immovable property is directly and specifically in question, the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r usage . (b ) Every such lease shall reserve the best rent that can reasonably be obtained, and no premium shall be paid or promised and no rent shall be payable in advance . (c ) No such lease shall contain a covenant for renewal . (d ) Every such lease shall take effect from a date not later than six months from the date on which it is made . (e ) In the case of a lease of buildings, whether leased with or without the land on which they stand, the duration of the lease shall in no case exceed three years, and the lease shall contain a covenant for payment of the rent and a condition of re -entry on the rent not being paid within a time therein specified . (3 ) The provisions of Sub -section (1 ) apply only if and as far as a contrary intention is not expressed in the mortgage -deed; and the provision of Sub -section (2 ) may be varied or extended by the mortgage -deed and, as so varied and extended shall, as far as may be, operate in like manner and with all like incidents, effects and consequences, as if such variations or extensions were contained in that Sub -section . Rules 95 and 96 of Order XXI of the CPC under which the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with any property during the pendency of a suit provided the conditions laid down in the section are satisfied. 7. Section 58 makes it clear that in case of a mortgage there is a transfer of an interest in the specific immovable property mortgaged for the purpose of securing the payment of money advanced or to be advanced by way of a loan, an existing or future debt, or the performance of an engagement which may gives rise to pecuniary liability. It further confers, in case of a simple mortgage where, without delivering the possession of the mortgaged property, the mortgagor binds himself personally to pay the mortgage-money, a right on the mortgagee to cause the mortgaged property to be sold and the proceeds of sale to be applied, so far as may be necessary in payment of the mortgage-debt. 8. Section 65A which as we noticed earlier, was introduced by the Amending Act, 1929 in recognition of the mortgagor's powers exercised bona fide to grant lease of the mortgage-property in the usual course of management, makes provision with regard to the exercise of such powers by the mortgagor, while the mortgage subsists and the mortgagor is in lawful possession of the mortgaged-pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lised by the sale of the theatre. The Central Bank of India, another creditor of the mortgagor, assigned its rights under the decree to the plaintiff decree holder. The theatre was attached in the course of execution of the decree. The original lease of 1940 on the basis of which the appellant, the Supreme General Films Exchange Ltd. had entered into possession, expired in 1946 but thereafter the Company had continued in possession as a tenant holding over until the impugned lease-deed of 1946 in favour of the company was executed. The company filed a suit in 1954 for specific performance of the agreement to lease and the lease deed of 1956 was executed in compliance with the terms of the compromise decree passed in the said suit filed by the appellant company. In the said suit for specific performance by the appellant company, the plaintiff mortgagee was not impleaded as a party. The plaintiff mortgagee thereafter filed a suit claiming that the lease of 1956 was void as the same came within the mischief of Sections 52 and 65A of the Transfer of Property Act and also Section 64 of the CPC, The appellant company contested the said suit contending inter alia that the suit of this nat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of Section 52 of the Transfer of Property Act . This argument overlooks the special object of the doctrine of lis pendens which applies to a case in which litigation relating to property in which rights are sought to be created pendens lite by acts of parties, is pening . Moreover, for the purposes of this argument, the defendant -appellant assumes that the provisions of Section 65A (2 )(e ) Transfer of Property Act are applicable . If that was so, it would make no substantial difference to the rights of the defendant -appellant, which would vanish before the suit was filed if Section 65A applies . We, however, think that, as the special doctrine of lis pendens, is applicable here, the purported lease of 1956 was invalid from the outset . In this view of the matter, it is not necessary to consider the applicability of Section 65A (2 )(e ), which the defendant -appellant denies, to the facts of this case . This Court further held agreeing with the concurrent findings of the Trial Court and the High Court that the lease of 1956 was also struck by the provisions of Section 64 of the Civil Procedure Code, as the property continued to remain under attachment at the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity of the leases granted by the mortgagor was not affected by Section 65A of the Transfer of Property Act as the leases were granted before the enactment of Section 65-A. As these aspects do not have any material bearing on the question involved in the present appeal, it does not become necessary for us to pursue these two aspects any further. This Court, however, held that the leases in question were not granted by the mortgagor in the ordinary course of management as the agent or bailiff of the mortgagee and were not binding on the mortgagee and in that view of the matter this Court dismissed the appeal. This Court observed at p. 132 as follows;- A lease granted by the mortgagor, out of the ordinary course of management, though not binding on the mortgagee is binding as between the mortgagor and the lessee . Such a lessee acquires an interest in the right of redemption and is entitled to redeem . If such a lease is created before the institution of a suit relating to the mortgage, the lessee must be joined as a party to the suit under Order 34, Rule 1, C .P .C .; otherwise he will not be bound by the decree passed in the suit and will continue to retain his right of red ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e us. 15. It may be true that Section 52 and Section 65-A of the Transfer of Property Act operate in different spheres. Section 65-A, as we have earlier noticed 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 'not withstanding 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. We have earlier noticed what the requirements of the said section are. In the instant case, it does not become necessary for us to consider whether the grant of any lease by a mortgagor in conformity with the provisions of Section 65-A of the Transfer of Property Act during the pendency of a suit by the mortgagee to enforce the mortgage will attract t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d sale certificate has been obtained by him. The mode and manner of obtaining such possession are regulated by Rules 95 and 96 of the CPC. 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 this 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 (c)eeapaiioa 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 su ..... X X X X Extracts X X X X X X X X Extracts X X X X
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