T.N. Singh, J.
1. Because comprehension of the legal issues involved in this matter differed diametrically, counsel extracted, unfortunately, an extended hearing, citing unnecessarily a huge mass of case-law. This happened despite my warning, rendered to discharge my constitutional duty, that directionless arguments with misplaced emphasis served no cause of justice.
2. Even at this stage, I must, as well, state that endless arguments were advanced on the scope, ambit and applicability of Section 52 of the Transfer of Property Act, for short, the T.P. Act, while, according to me, the controversy in issue merited resolution with reference merely to the provisions of Rule 36 of Order 21 of the Civil P.C., which I extract:
'36. Decree for delivery of immovable property when in occupancy of tenant.--Where a decree is for the delivery of any immovable property in the occupancy of a tenant or other person entitled to occupy the same and not bound by the decree to relinquish such occupancy, the Court shall order delivery to be made by affixing a copy of the warrant in some conspicuous place on the property, and proclaiming to the occupant by beat of drum or other customary mode, at some convenient place, the substance of the decree in regard to the property.'
Some justification for the misadventure is, however, to be found in the approach to the question adopted by the Executing Court which is amply manifested in the impugned order itself. In para 6 of the impugned order, the Court held that after preliminary decree was passed in the partition suit, it was not open to judgment-debtor Radhi Kishan (sic) to induct the objector (Ramji Das, the revisionist) on the suit property as tenant and the objector could not, therefore, validly resist the prayer made on 6-11-1978 by the decree-holder (herein non-petitioner No. 1) for an order in the Execution proceeding for delivery to him of vacant possession of the part of the suit property in revisionist's possession. It may be mentioned in this connection that in the original application filed on 19-5-1978, the revisionist Ramji Das was not cited as the judgment-debtor and indeed, the execution of the decree was sought merely against Satyanarayna and Narayani Devi, son and daughter respectively of Radha Kishan; and Jethmal s/o. Ganeshilal.
3. However, a few more background facts, on which much reliance was placed by counsel on both sides, may also be noticed. One Murlidhar was co-sharer with Radha Kishan and Jethmal in the property of which a part subsequently came to be let out by Jethmal, to the revisionist. Murlidhar's share was sold in Court auction on 19-9-1952 which was purchased by Lakshmi Kumar Baori (non-petitioner No. 1). On 30-9-1952, it was sold by Lakshmi Kumar to Madan Gopal who got symbolic possession of his purchased share of the property and instituted a partition suit against Radha Kishan and Jethmal in which a preliminary decree was passed on 11-2-1965 in Civil Suit No. 90/60. Before the final decree could be drawn up, two interesting events happened. On 24-4-1966, Lakshmi Kumar instituted Civil Suit No. 4A/67 against Madan Gopal, alleging the latter to be his Benamidar. In that suit, he got a decree on 16-3-1974, by which his title to the property was declared. The catalytic event of greater importance which also took place in 1966 and is indeed the bone of contention between the parties in this revision, is induction of the revisioinist as a tenant on a part of the property which formed subject-matter of the partition suit: It is also submitted that after Lakshmi Kumargot himself substituted in the partition proceeding in place of Madan Gopal, in 1974-75, he entered into negotiations with the other parties to the partition suit and the final decree which was prepared on 18-5-1978 was on the basis of collusive settlement between the parties, to dispossess the revisionist. Whatever that may be, the solid fact emerging finally is that on 18-5-1978, 'decree for delivery of immovable property' in question was passed in favour of the non-petitioner and execution was levied by him on 19-5-1978 of that decree.
4. The foremost question to be decided, therefore, by the Executing Court was evidently consideration of the objection of the revisionist under Rule 36, aforequoted, contesting the claim of the non-petitioner for an order of delivery of vacant possession to him of the premise's. Indeed, if the objector's claim of being in possession, as a 'tenant', of the property from which he was sought to be evicted, was found established, his objection ought to have been upheld. The prayer of the non-petitioner for vacant possession was liable to be rejected and only symbolical possession could be ordered. Much argument has, however, been advanced on the prohibition contained in Section 52 of the T.P. Act, as earlier alluded, to submit of course that the other co-sharers (Radha Kishan and Jethmal) having lost all authority to deal with the property after 11-2-1965 because of the passing of ihe preliminary decree, the tenancy created in favour of the revisionist would not avail the latter. To this contention, there are two short answers. Firstly, indeed, is the fallacy underlying the argument which is based on misconception that Section 52 voids a 'transfer' made pendente lite although, evidently, the Section makes such transfers only voidable and that too at the option of the affected party to the proceeding, pending which the transfer is effected. Secondly, and rather importantly, in view of the provisions of the Madhya Pradesh Accommodation Control Act, 1961, for short, M.P. Act, 1961, the change in ownership of the property as a result of the final partition decree, of which execution was sought, did not at all affect the legal status of revisionist so as to invalidate his objection founded on Rule 36 aforequoted.
5. I propose to deal first with the contention based on Section 52, of which I extractthe relevant portion :
'52. Transfer of property pending suit relating hereto.-- 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 right or any other party thereto under any decree or order which may be made therein, except under the authority of the Court and on such terms as it may impose.....'
It appears crystal-clear to me on the plain language of the provision as to what the expression 'so as to affect the rights of any other party thereto under a decree or order' means. Indeed, because of crucial importance of the expression, I have emphasised it in the above extract. If it means anything, it clearly means that a transfer pendente lite is voidable at the option of the party whose interests as on the date of such a transfer are affected. In the instant case, when tenancy was created in favour of the revisionist, the non-petitioner was not a party to the suit. Indeed in virtue of the preliminary decree which was passed on 11-2-1965. it was Madan Gopal who could enforce the right thereunder to avoid the lease created in 1966 ih revisionist's favour, but he never exercised his right. When .the non-petitioner came in his place in 1974-75, he did not, and could not, claim evidently through Madan Gopal. Indeed, he claimed in his own right in virtue of the decree which he obtained on 16-3-1974 against Madan Gopal. In other words, if Lakshmi Kumar could enforce any right, it was the jright which he secured under the final decree passed in 1978. Evidently, the proceeding after Lakshmi Kumar became a party in the partition suit in 1974-75, took a different form and there was no 'transfer' thereafter impinging on the rights, available to him after 1978, the tenancy in favour of revisionist having been created earlier in 1966.
6. What really is the object and purport of Section 52? Does it not create only a right to beenforced to avoid a transfer made pendente lite? Indeed, because, such transfers are not void, but only voidable. The right ex hypothesi accrues only to such parties and in such circumstances as are expressly envisaged under Section 52. It would, therefore, be reasonable to hold that one who claims the right must establish the same before he can enforce it. The right contemplated under Section 52, no doubt, can be used, both as a sword and a shield, depending on such facts as to what right or interest is transferred, who the affected party is and how and in what manner the 'transfer' is likely to 'affect' any party to the pending 'proceeding'. It can be used as a shield in a subsequent stage of the same proceeding between the same parties or their representatives-in-interest. For, no need or occasion to establish the right arises in such a case as acts of parties bind them and their representatives-in-interest. Any person who would like to use it as a sword must, however, first establish his right to do so when, in any subsequent proceeding, objection is taken to his claim to do so, Indeed, if the transfer was not avoided by any of the parties to the earlier proceedings, likely to be affected by such transfer, the transferee is not prevented from claiming that the right to avoid transfer was lost and nothing survived to be enforced. For this view, I find ample support in Jayaram Mudaliar, AIR 1973 SC 569 cited by Shri R.D. Jain and I extract in extenso what is observed in that case by their Lordships in para 48 of the report:
'48. Expositions of the doctrine indicate that the need for it arises from the very nature of the jurisdiction of Courts and their control over the subject-matter of litigation so that parties litigating before it may not remove any part of the subject-matter outside the power of the court to deal with it and thus make the proceedings infructuous'. In para 50, it is also held in clear and categorical terms : 'The purpose of Section 52 of the Transfer of Property Act is not to defeat any just and equitable claim but only to subject them to the authority of the Court which is dealing with the property to which claims are put forward.'
7. Therefore, in the instant case, the question whether the non-petitioner could invoke Section 52 to meet the objection taken bythe revisionist in the execution proceedings can indeed have only academic importance for the simple reason that to strike down the lease or tenancy of the revisionist, he had to first establish that he had a subsisting right and that he could enforce it against the revisionist. But he did not do so. He was . indeed required to institute a separate suit to establish this right because he could not claim to be Madan Gopal's representative-in-interest to enforce the right if any accrued to Madan Gopai in virtue of the preliminary decree passed in the Suit to which Madan Gopai, and not the non-petitioner, was a party. Indeed, in that suit only it could be determined whether as the 'affected party' Madan Gopai had exercised in any manner his right to avoid the lease of the revisionist and the right was not lost but remained alive and enforrceable. In the instant execution proceeding, to which Madan Gopai was not a party, there could be no scope evidently for determination of these crucial questions.
8. Further research into the scope or applicability of Section 52 has to be foreclosed at this point and note may be, briefly, taken of the contentions also of Shri R. D. Jain, to do so. Shri Jain contended that there are also other conditions-precedent on satisfaction of which only Section 52 could be invoked and in the instant case, those conditions have not been satisfied. Shri Jain's contention is that Section 52, in terms, excluded operation of the provision in a 'proceeding' which was 'collusive' and that in the instant case, facts are vocal to suggest collusion between the non-petitioner and other parties to the partition suit, the final decree having been obtained collusively with the ulterior object of dispossessing the tenant/revisionist. It is also Shri Jain's contention that there should be no dispute either as to identity of the property or of parties to the 'suit' or 'proceeding' as could be read from the clear mandate of the provision, otherwise the provision would not apply. Counsel, therefore, laboured hard to draw my attention to the plaint as also the sale-certificate of Lakshmi Kumar and his sale deed, executed in favour of Madan Gopai. Because I have taken a different view of the matter and held Section 52 to be inapplicable, on other grounds, to the facts of the instant case, I do not consider it necessary to examine the points urged by Shri Jain. Still, I may saythis much that his contention as to identity of parties I have already considered crucial to the instant lis.
9. Counsel for the respondent, Shri N.K. Modi, has, as I said at the outset, cited authorities galore to press his contention founded on Section 52. It behoves me, therefore, to look at them though I am clear in my mind that no assistance can be derived by Shri Modi from the decisions cited, Subramonia, AIR 1961 Kerala 335 holds that Section 52 applies to a suit for partition and the tenant inducted by any of the parties to the suit during the pendency of the suit was bound by the decree. Evidently, the question as to who was the party entitled to evict the lessee was not the question that came up for determination in that case. In Rappel Augusthi, AIR 1970 Kerala 188, the same view was taken, but what has escaped the notice of their Lordships in both cases is the important fact that any 'transfer' made in violation of Section 52 is voidable, and not void. Indeed, in both cases the tenant claimed protection of statutory provisions And did not raise any objection that Section 52 does not make void ipso facto any transaction and indeed no claim to continue in possession in virtue of Order 21, Rule 35 came to be raised either, by the tenant. It is true that in Ram Sarup, AIR 1964 Punjab 525, the view taken was that in execution of a partition decree, separate suit to evict the lessee inducted by one of the co-sharers was not necessary, but the fact is that Section 52 was not invoked in that case and the view was based on the principle that tenant derived his title from his landlord and his right came to an end with that of the landlord. A decision of a learned single Judge of Calcutta High Court in the case of Arati Rani, AIR 1982 NOC 42, was also pressed in service. Punjab decision was relied on and it was held that the lease by one co-owner without consent of the other co-owner during the pendency of partition proceeding did not bind the latter and he could take possession in execution proceeding. In Amarnath, (AIR 1966 All 163),* it was held that a transferee pendente lite was bound by a compromise decree just as much bound was a party to the suit. Purna Ghandra,' AIR .1966 Orissa 98 was a case of, gift pendente lite by one of the parties to apartition suit. In this case it was significantly recognised that although the transfer was hit by Section 52, that would merely subject the transferee to the rights of the parties to the suit as may be decided eventually. In Mohd. Ali, AIR 1973 Mys 131, it was held that Section 52 prevents a transferee from operating adversely to the interest declared by the decree. The decision of Gwalior Bench in the case of Umajirao, AIR 1954 Madh Bha 46 speaks only that Order 21, Rule 102, C.P.C., recognised the doctrine of lis pendens. Although Shri Modi cited also Section G. Film Exchange, AIR 1975 SC 1810, I read nothing therein to support him and would rather say, as earlier alluded, that it supports the view taken by me because a suit was brought in that case to avoid a transfer pendente lite and the decision was rendered in the appeal arising from that suit. Similarly, the other decision of their Lordships in Kedarnath, AIR 1970 SC 1717 rather supports the view that Section 52 would be applicable only to such 'proceedings' as were bona fide, and that even to Court sales, the provision applied.
10. Decision involving mortgagees and mortgagors and transfers pendente lite by them were also cited by Shri Modi, but I have no doubt that those decisions, as contended by Shri Jain, would have no bearing on the facts of the instant case because of the specific provision in regard to mortgages contained in Chapter IV of the Transfer of Property Act. Reliance on Shyam Lal, AIR 1928 All 3, Debi Sahai, AIR 1926 Lahore 668, Ayer Ravji, AIR 1963 Guj 328, Sachalmal, 1972 Jab LJ 394 : (AIR 1972 SC 637) and Aladad Khan, 1961 Jab LJ 1094 does not, therefore, avail the non-petitioner. On the other hand, Dev Raj Dogra, AIR 1981 SC 981 is rightly pressed in service by Shri Jain. In the course of execution of a mortgage-decree, complaint was made of leasing out the property by judgment-debtor after the decree was passed to press the prayer for vacant possession on behalf of the auction-purchaser. It was refused on the ground that only sympbolical possession of the property could be given in view of the provision of Rules 95 and 96 of Order 21, C.P.C. Shri Jain also relied on Dahya Lala, AIR 1964 SC 1320, wherein it was held that in view of the special law enacted in the Bombay Tenancy and Agricultural Land Act,mortgagee's tenant could not become a 'deemed' tenant and he was protected under the Act; his liability under the T.P. Act (to be evicted) being abrogated by the Act.
11. Now, two other decisions, also cited by Shri N.K. Modi, may be looked into. In Narayan Laxman, AIR 1957 Bom 117, the question agitated was applicability of Section 52 to a proceeding for restitution under Section 144, Cr. P.C. The Court held that the nature of the proceeding under Section 144 was same as that of execution proceeding and restitution in virtue of the decree passed in appeal could be granted even against a tenant who could be considered to be representative-in-interest of the party to the execution proceeding who had obtained possession of the property in that proceeding and had inducted the tenant during pendency of the appeal. In Pandit Ramgulam, 1972 MPLJ 254, it was held that no enquiry is contemplated by the form and language of Order 21, Rules 35 and 36, when the decree-holder applied for warrant of actual possession. In Niranjan Mukherji, AIR 1926 Cal 714 (FB), the Court held that a person to whom a parcel of land had been allotted in a decree of partition of a Civil Court does not take it subject to a permanent lease granted by his former co-owner. In V. Seetharama Swamy, AIR 1982 Andh Pra 454, it was held that a lawful judgment, in the absence of any fraud or collusion against lessor binds his lessee even though he was not a party to the judgment.
12. Few words now on another point which Shri Modi took that it was not open to the revisionist to agitate any question in this Court which he had not raised in his objection filed in the execution proceeding. He relied on Mahabir Gope, AIR 1952 SC 205 and Kamalsingh (1982 MPWN 189) to do so but counsel's contention is obviously fallacious. I do not think that it is impermissible in any view of the matter for the revisionist to rely on his specific statutory entitlement though the statutory provision has not been stated in categorical terms in the objection. As I have earlier said, the main objection of the revisionist, categorically stated, was that he could not be dispossessed from the premises in his occupation because he was a 'tenant' and this plea, evidently, was made in terms of Rule 36 of Order 21, C.P.C. Unfortunately, theExecuting Court misconceived the scope of the plea which received, therefore, little or no consideration of the Court. The fault evidently was not of the revisionist and he would not be, therefore, debarred in this Court to rely on the provisions of M.P. Act, 1961. Indeed, the moot point for decision by the Executing Court was to decide whether the concerned premises was in occupation of the revisionist as a 'tenant' and, therefore, whether delivery of actual possession, as prayed by the decree-holder/non-petitioner, could at all be ordered.
13. The admitted fact of the case is that the property in question, which was the subject-matter of partition and of the execution proceeding, is a house situate in Gwalior and it cannot, therefore, be disputed that M.P. Act, 1961 being applicable to the case, has signal relevance to the question agitated while the provisions of the Act have been wholly ignored and overlooked by the Executing Court. Indeed, the short and simple question was, whether the revisionist/objector could be considered to be 'tenant' within the meaning of Rule 36 of Order 21, C.P.C. Because, there is no ambiguity about the position that Rule 36 applies to two different classes of persons, namely, 'a tenant' and 'other person entitled to occupy the same' albeit in both cases 'not bound by the decree to relinquish such occupancy'. Therefore, the moot question would be, whether the 'tenant' was entitled in law not to relinquish his 'occupancy' notwithstanding the 'decree'. Because the term 'tenant' is not defined in C.P.C., resort and reference to the definition in M.P. Act, 1961 is inevitable to find out if the revisionist's 'occupancy' was protected thereunder. I have no doubt, in the instant case the facts vocally suggest that the revisionist has become a 'statutory tenant' of the concerned premises even if it is accepted, as contended, that the contractual tenancy created in his favour by Madan Gopal stood terminated by operation of law, namely, Section 52. Indeed, the non-petitioner had become his 'landlord' on and from 18-5-1978, namely, the date when he became 'entitled', in terms of Section 2(b) of the said Act, to receive the renf from the revisionist, who was in actual occupation of the premises on that date, albeit without a contractual lease. I quoteaccordingly not only Clause (b), but also (i) of Section 2 for a proper understanding of the legal position : --
'(b) 'landlord' means a person who for the time being is receiving or is entitled toreceive, the rent of any accommodation, whether on his own account or on account ofor for the benefit of any other person or as a trustee, guardian or receiver for any other person or who would so receive the rent or be entitled to receive the rent, if theaccommodation were let to a tenant and includes every person not being a tenant who from time to time derives title under a landlord;' '(i) 'tenant' means a person by whom or on whose account or behalf the rent of any accommodation is, or, but for a contract express or implied, would be payable for any accommodation and includes any person occupying the accommodation as a sub-tenant and also any person continuing in possession after the termination of his tenancy whether before or after the commencement of this Act; but shall not include any person against whom any order or decree for eviction has been made.' 14. The concept of a 'statutory tenant' is brought out in the under-quoted judicial dictum of the Apex Court in the case of Anand Nivas, AIR 1965 SC 414 at p. 422 r'A person remaining in occupation of thepremises let to him after the determination ofor expiry of the period of the tenancy iscommonly, though in law not accurately,called a 'statutory tenant'. Such a person isnot a tenant at all: he has no estate or interestin the premises occupied by him. He hasmerely the protection of the statute in that hecannot be turned out so long as he pays thestandard rent and permitted increases, if any,and performs the other conditions oftenancy.....'
Time and again, the principle aforementioned has been reiterated by their Lordships and I had occasion to refer to the catena of decisions, while dealing with the question which arose under Tripura Buildings (Lease and Rent Control) Act, 1975, I reiterate the view which I expressed in the case of Santosh Chandra Paul, (1985) 1 Gauhati LR 399, that Rent Control Acts enacted in almost all Stateswere meant to fulfil a wholesome social objective to solve the burning social problem of 'rack-renting and indiscriminate eviction of tenants' legislature intended to protect 'Existing Possession' of a person in occupation of any premises on the condition of paying rent. Indeed, the definition of the term 'tenant' of Tripura Act is in pari materia with Section 2(i) of the M.P. Act, 1961 in as much as the only category of persons who are excluded from the definition are stated in both Acts in exactly same terms -- 'shall not include any person against whom any order or decree for eviction has been made'. In the case of Md. Mazid Mir, (1983) 1 Gauhati LR NOC 29 I also took the view that a statutory tenancy gives no room to the concept of attornment inasmuch as the obligation to pay rent due payble to the transferee does not arise in such a case under Section 109 of T.P. Act but under the provisions of the Rent Control Act; itself. It was held in that case that a tenant must seek out his landlord and discharge his statutory obligation to pay rent because under Section 5(1) of the Assam Act, the statutory liability of the tenant as regards payment of rent and ejectment for non-payment was relatable only to his occupation of the premises.
15. However, what is of greater significance to be noted in the context of the instant lis, is relevance also of the provisions of Sections 12(1)(a) and 13(5) of the MP. Act, 1961 which I quote :
'12. Restriction on eviction of tenants.-
(1) Notwithstanding anything to the contrary contained in any other law or contract, no suit shall be filed in any Civil Court against a tenant for his eviction from any accommodation except on one or more of the following grounds only namely :
(a) that the tenant has neither paid nor tendered the whole of the arrears of the rent legally recoverable from him within two months of the date on which a notice of demand for the arrears of rent has been served on him by the landlord in the prescribedi manner'.
'13(5). If a tenant makes deposit or payment as required by Sub-section (1), or sub-section(2) no decree or order shall be made by the Court for the recovery of possession of the accommodation on the ground of default inthe payment of rent by the tenant, but the j Court may allow such cost as it may deem fit to the landlord.'
Clauses (b) and (i) aforequoted of Section 2, as discussed, established statutory tenancy in the instant case between the revisionist and he non-petitioner. That relationship which came into being on 18-7-1978 has subsisted all through and has remained undetermined in accordance with Section 13(5) aforequoted. The revisionist was continuing in possession of the concerned premises on 18-5-1978 and on that date, there was no decree or order passed for his eviction from the premises and the non-petitioner had become entitled to receive rent from him but in virtue of the provisions of Sections 12(1)(a) and 13(5), no 'order' for his eviction could be obtained against the revisionist on the basis of the application made in the instant execution proceedings which did not emanate from a suit instituted under Section 12(1)(a) of the Act. The non obstante clause of Section 12(1) carries an express and inexorable mandate in that regard. In a recent decision rendered by me in the case of Chandrashekhar v. Kishandas (S.A. 108 of 1978, decided on 17-9-1986), I had an occasion to deal with the inter-action and inter-relation of Section 12(1)(a) and sub-sections (1), (2) and (5) of Section 13 to hold that even when a landlord had obtained decree under Section 12(1)(a) to evict the tenant, because order for his dispossession could be eventually passed by the Executing Court when such a decree is put into execution, the protection of the tenant against his eviction extends to the stage of execution even and he may invoke the aid of the Executing Court to stall his eviction by making deposit of arrear rent due payable by him. I have no doubt, therefore, that the revisionist, as a'statutory tenant' under M.P. Act, 1961, is entitled to invoke the aid of Rule 36 of Order 21, C.P.C. in virtue of statutory entitlement ensured under Section 12(1)(a) and Section 13(5), read with Clauses (b) and (i) of Section 2 of the said Act. That being the position, the Executing Court in the instant case, evidently exceeded its jurisdiction in rejecting the objection of the revisionist and ordering his eviction on the basis of a decree not passed against him under Section 12(1)(a) of M.P. Act, 1961. The impugned order must, therefore, be held to be without jurisdiction.
16. In the result, this petition succeeds and is allowed. The impugned order is set aside. The objection of the revisionist is upheld and the prayer of the non-petitioner No. 1 for delivery of vacant possession of the premises occupied by the revisionist stands rejected. There shall be no order as to costs in this revision.