H.L. Anand, J.
(1) This petition under Article 227 of the Constitution of India raises an interesting question as to the extent of the power of a Court to restore possession of immoveable property to the judgment-debtor on the ex-parte decree pursuant to which the possession was delivered, being set aside.
(2) This is how the question has arisen. Property No. 3509, Rashid Manzil, Nicholson Road, Kashmere Gate, Delhi belongs to one Jagdish Rani Sethi. N.P. Corea, respondent No. 2. herein, was a tenant in respect of a part of the second floor of the aforesaid property. M.E. Periera, respondent No. 1 herein was in occupation of a part of the said demised premises, either as a sub-tenant under N.P. Corea or as a licensee, a matter which is in controversy between the parties. N.P. Corea obtained an exparte decree against M.E. Periera from a Civil Court on the allegation that Periera was a licensee and pursuant to the decree, N.P. Corea obtained possession of the said portion and allegedly surrendered the demised premises in favor of the landlady, who in turn is alleged to have let out a portion of the premises, including the portion in the occupation of M.E. Periera, to Jagdish Lal Arora, petitioner herein. Meanwhile on a motion of Periera, the exparte decree was set aside and Corea was directed to restore the portion previously in the occupation of Periera to him. The process of the Court for the restoration of the property was, however, resisted, inter alia, by the petitioner on the ground that he was a bona fide tenant in respect of the premises including the said portion and was not liable to be disturbed in the proceedings pursuant to the order of restoration. Periera thereupon sought police aid. The Petitioner made an application to the trial Court for stay of further proceedings till such time as the application under order 21 Rule 97 of the Code of Civil Procedure had been made. It was further prayed that if the application for police aid be treated as an application under order 21 Rule 97 of the Code of Civil Procedure, notice of the same be given to the petitioner and further proceedings be stayed till the claim of the petitioner had Been determined. It was stated in the application that the petitioner was in bona fide possession of the premises as a tenant in his own right and 'in good faith'. By an order made by the trial Court on October 24, 1975, the plea for stay of proceedings was turned down. It was, however, observed that the order shall not prejudice to the title or interest of the applicant in any way'. In the course of the order, the contentions raised on behalf of the petitioner, that no police aid could be given without a motion under Order Xxi Rule 97 of the Code of Civil Procedure for removal of obstruction, and without giving notice to the petitioner, were repelled on the ground that the aforesaid provision had no application to proceedings in the execution of a restoration order. It was further held that the petitioner, having come into possession of the premises during the pendency of the suit, 'his rights are prima facie barred by Section 47 ''CPC'. It was further observed that in proceedings under Section 144 of the Code of Civil Procedure, it was the duty of the Court to restore the benefit taken by a party under a decree which has since been set aside. This order was confirmed by this Court (Rohtagi J.) in a revision petition filed against it. Subsequently, the application of the petitioner was dismissed by an order made by the trial Court on November 11, 1975. The trial Court reiterated its earlier conclusion that the provisions of Order Xxi Rules 97 and 99 were not applicable to the present proceedings because the proceedings were not in execution but for restoration of property. The plea of the petitioner for investigation into the right in which he claimed the possession of the property was turned down on the ground that by virtue of Rule 102 of the Code of Civil Procedure the provisions of Rules 99 and 101 of the said Order were not applicable to any resistance or obstruction in execution of a decree for possession by a person to whom ''the judgment debtor has transferred the property after the institution of the suit' in which the decree was passed. While dismissing the application it was directed 'that if the applicant still resists or obstructs in obtaining the possession by the respondent Mr. M.E. Pereira, he will be liable to be detained in Civil Prison for a period of 30 days as provided u/o 21 Rule 98 CPC'. It is this order that the petitioner seeks to challenge.
(3) There was considerable controversy before me as to whether the petitioner was a bona fide tenant in respect of the premises in dispute or was acting in collusion with the landlady and Corea with a view to frustrate the object of the restoration proceedings. A contention was also raised on behalf of the petitioner that, in any event, the petitioner having resisted the process, he was entitled to a notice before the police could be drafted to carry out the restoration order, and that he was entitled to an opportunity to establish by appropriate material that he had taken the premises from the landlady as a tenant without any knowledge of the previous litigation between the parties in respect of the premises and was, thereforee, a person whose bona fide interest in the property could not be affected by the restitution proceedings or otherwise in the suit in which they were taken. It was, however, not disputed by Shri Manmohan Singh Sahni, learned counsel for the petitioner that even if the petitioner was entitled to a notice after the process was resisted and before the police aid could be sought, the petitioner waived such a requirement when the petitioner made an application on October 9, 1975 seeking stay of further proceedings and an investigation into his independent claim to the possession of the premises uneffected by the restoration proceedings. Likewise, it was not disputed by Shri B.K. Aggarwal, learned counsel for Pereira that if the power of the Court in restoration proceedings extended to the eviction of strangers to the proceedings only if they were not in bona fide possession without notice of the earlier proceedings, it would be necessary to set aside the order and to remand the proceeding to the trial Court for a determination of the question if the petitioner was a bona fide tenant or was acting in collusion with and had been set up by the landlady and Coreato defeat the object of the restoration proceedings. The determination of this question is essentially a question of fact which would involve investigation, and although some material is available on the record, which has relevance to the question, there has obviously been no investigation. It was, however, contended on behalf of Periera that even if the petitioner was a bona fide tenant, he was still liable to be evicted pursuant to the restoration proceedings because his claim to possession was relateable and would be traced to Corea, who was not only a party to the proceedings but was the person who had taken benefit under the exparte decree, and that no investigation into his claim was, thereforee, necessary.
(4) The only question that, thereforee, survives for consideration is as to the extent of the power of the Court in restoration proceedings and in particular whether a transferee from the decree holder, who had taken advantage of the ex parte decree and the transferee from such a transferee would be within the reach of the Court in such proceedings even though neither of the transferees may have any knowledge of the earlier proceedings and were dealing with the property in good faith.
(5) The law bearing on the question is to be found in the provisions of the Section 144 of the Code of Civil Procedure, Section 47 and Order Xxi Rules 97 to 103 of the Code and Section 52 of the Transfer of Property Act. The question must, thereforee, be examined in the context of these provisions.
(6) Section 52 of the Transfer of Property Act provides that the immoveable property forming subject matter of a suit or proceedings 'in which any right to immovable property is directly and specifically in question' 'cannot be transferred or otherwise dealt with by any party to the suit or proceedings so as to affect the rights of 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 it may impose'. The Section incorporates the well-known doctrine of lis pendens which, to quote Turner L.J. 1, Bellamy v. Sebani rests on the foundation 'that it would plainly be impossible that any action or suit could be brought to a successful termination, if aliernations pendente lite were permitted to prevail'. As was pointed out by Lord Cranworth in the same case the rule is not based on the doctrine of notice but on expediency, that is, the necessity for final ad- judication. It is, thereforee, immaterial whether the transferee pendente lite had or had not the notice of the pending proceedings except where there is a clear provision to the contrary, as in England, and some of the States in India. It is not in doubt that the 'right to immoveable property' includes a claim for possession of immoveable property' It has also been recognised that the expression 'or otherwise dealt with' in Section 52 is much wider and would include transfer of possession by lease or otherwise. The expression 'any party to the suit' has been judicially determined to include not only the party to the proceedings or the suit but their legal re- presentatives which expression would also include all those persons who claim through the party either as transferees or otherwise. It has, thereforee, been held that although the surrender by a lessee in favor of a Lesser would not be 'transfer' within the meaning of the Section but would nevertheless amount to otherwise dealing with the property within the meaning of the Section. It was, thereforee held by the Privy Council that a transferee of the mortgaged property pending a suit for fore closure is representative-in-interest of the mortgagor/judgment-debtor and was bound by the mortgage decree Parmeshari Vs Ram Charan . Bombay High Court took the same view following the decision of the Judicial Committee in Narayan Vs . Vishnu : AIR1957Bom117 .
(7) Section 144 of the Code of Civil Procedure provide that 'where and in so far as a decree (or an order) is varied or reversed', the Court shall 'on the application of any party entitled to any benefit by way of restitution or otherwise, cause such restitution to be made as will, so far as may be, place the parties in the position which they would have occupied but for such decree (or order) or such part thereof as has been varied or reversed' and empowers the Court to 'make any orders, including orders for the refund of costs' etc. 'which are properly consequential on such variation or reversal'. Sub-section (2) of this Section bars any suit for the purpose of obtaining any restitution or other relief which could be obtained under the Section. The doctrine of restitution which the Section incorporates is based on the principle that the acts of Court should not be allowed to work injury on the suitors Rodger v. Comptior 40 L J P.C. 1. According to the doctrine of restitution on the reversal of a judgment the law raises an obligation on the party who received the benefit of the erroneous judgment, to make restitution to the other party for what he had lost and that it is the duty of the Court to enforce that obligation unless it is shown that restitution would be clearly contrary to the real justice of the case Lal Bhagwanti Vs . Sri Kishan : 4SCR559 . This obligation arises automatically on the reversal or modification of the decree and necessarily carries with it the right of restitution of all that has been done under the erroneous decree and the Court in making restitution is bound to restore the parties, so far as they can be restored, to the same position they were in at the time when the Court by its erroneous action had displaced them from, Binayak Vs . Ramesh : 3SCR24 . Thus judgment-debtor was held entitled to restitution even though ultimately after fresh disposal a decree was passed in favor of the decree holder. It was, however, held that 'at the time of the application for restitution, judgment-debtor was entitled to restitution, because on that date, the decree in execution of which the properties were sold had been set aside.' There has been considerable judicial controversy as to whether the right of restitution is confined to the party who has taken the benefit or even to others who may claim through such a party either as transferees or otherwise or even to complete strangers who may have an independent title to the property. While the Court, has undoubted power, as indeed an obligation, to compel the party, which has taken the benefit, from the Court, as indeed the parties, who were the legal representatives of such a party or otherwise claiming through or at the instance of such a party or whose claim may otherwise be relatable to such a party to restore the benefit, it is doubtful if a complete stranger who bona fide claims the property on the basis of an independent right would be within the reach of the Court. It has, thereforee, been held that the successful party in restoration proceedings is entitled to be restored to property free from all incumbrances and that restitution could be claimed not only against the party but also against persons deriving title from him, Sukhan Singh Vs . Uma Shanker : AIR1935All65 .
(8) By virtue of the provisions of Section 36 of the Code the proceedings to carry out an order for the restoration of property under Section 144 of the Code of Civil Procedure would be in the nature of execution proceedings to which the provisions of the Code relating to execution of the decrees would apply, so far as they are applicable, and it has been so held by the Supreme Court Mahijibhai Vs . Patel : 2SCR436 sets out the questions that may be determined by a court executing a decree and provides that all questions arising between the 'parties to the suit' in which the decree was passed 'or their repre- sentatives' and relating to 'the execution' etc. of the decree ''shall be determined by the Court executing the decree and not by a separate suit'. This Section has been enacted with a view to enable the parties to obtain adjudication of questions relating to execution without unnecessary expense or delay which a fresh trial is bound to entail. This is consistent with the provisions of sub-section (2) of section 144 of the Code of Civil procedure which bars a suit for obtaining restitution and other reliefs which could be obtained by an application under sub-section (1). The expression 'representatives' in section 47 has a much wider meaning than the words 'legal representative' inasmuch as it would include not only a legal representative but any representative-in-interest who claims interest whether by assignment, succession or otherwise and who, so far as such interest is concerned, is bound by the decree. In the words of the Calcutta High Court Ajodha Roy v. Hardwar Roy 1909 (1) I.C. 213 in order to determine whether a particular person was a representative of a party to the suit within the meaning of the Section 'the two tests to be applied are, first, whether any portion of the interest of the decree-holder or of the judgment-debtor has by act of parties or by operation of law, vested in the person who is sought to be treated as representative, and secondly, if there has been a devolution of interest, whether so far as such interest is concerned, that person is bound by the decree'. Even a transferee from an auction purchaser would be a representative of a party for the purpose of the Section because by virtue of the Explanationn added to the section by Act 66 of 1956, the purchaser at a sale in execution of a decree is a party to the suit within the meaning of the section with the result that his representative, that is, a transferee from him would be a representative of the party and would be bound by the decree and would, thereforee, be within the provisions of Section 47. Rules 97 to 103 of Order Xxi of the Code of Civil Procedure regulate the resistance to delivery of possession pursuant to the process of a Court in execution. Rule 97 provides that in case of resistance or obstruction, the party complaining of such resistance or obstruction may move the Court who would fix a date for investigating the matter. If the Court is satisfied that the resistance or obstruction was occasioned 'without any just cause by the judgment-debtor or by some other person at his instigation' the Court is empowered by Rule 98 to direct that the applicant be put into possession and if it is resisted or obstructed, the Court may 'order the judgment-debtor or any person acting at his instigation to be detained in the civil prison for a term which may extend to thirty days'. Where, however, the Court is satisfied that the resistance or obstruction was 'occasioned by any person (other than the judgment-debtor) claiming in good faith to be in possession of the property on his own account or on account of some person other than the judgment-debtor', such an application could be dismissed under Rule 99. Rule 102, however, excepts from the operation of Rule 99 any resistance or obstruction 'by a person to whom the judgment-debtor has transferred the property after the institution of the suit in which the decree was passed.' Rule 103 provides that any party not being a judgment-debtor, against whom an order is made under Rule 98, or Rule 99 may institute a suit to establish the right 'which he claims to the present possession of the property' and makes such an order conclusive, 'but, subject to the result' of such a suit, if any. It is well settled that the summary procedure provided by Rules 97 and 98 would be available only against the judgment-debtor or some person who may be acting at his instigation. It is equally well settled that a resistance or obstruction by a person to whom the judgment-debtor transferred the property during the pendency of the suit, in which the decree was passed, would not be entitled to the protection of Rule 99. Rule 102, thereforee, to an extent, embodies the principle underlying Section 52 of the Transfer of Property Act and disentitles a transferee pendente lite from getting the benefit of the protection provided by Rule 99. The Rule is wide enough to include possession as well as transfer of property. It is also recognised that the transfer contemplated by the Rule need not necessarily be by the judgment-debtor direct to the third party who justifies the resistance or obstruction and any transfer of possession directly or at his instance or for which he has been responsible would come within the mischief of the Rule, Krishna Menon v. Ouseph A.I.R. 1952. T.C. 102
(9) A combined reading of the three sets of provisions referred to above hardly leaves any doubt that any transfer of possession of immoveable property during the pendency of a suit which involves any right to such property, would be incapable in law of affecting the rights that flow in relation to the property from a decree that may be passed in the suit. It is also evident that where a defendant has been deprived of the possession of the property in execution of a decree for such possession and the decree was eventually set aside, the party who is depraived of possession, is entitled to the possession being restored to him unless the justice of the cause points to the contrary and the party that has taken the benefit is under an obligation to restore possession and the Court is fully empowered, as indeed obliged to order restitution by evicting not only the party which has taken advantage but all those whose possession is relatable to such a party. In such cases the transferee from the party, who obtained the advantage, or a further transferee from such a transferee, would be within the reach of the Court irrespecting of whether such transferee or transferees were acting in good faith and without any knowledge of the earlier proceedings. The power & the obligation of the Court to restore the property to the person who has been deprived of it, in such cases, would transcend all limitations except those founded in justice of the cause. If, thereforee, either the person who took the benefit or any transferee from him or a transferee from such a transferee resisted or obstructed the execution of an order of restitution, would not have the protection of Rule 99 of Order Xxi of the Code of Civil Procedure.
(10) It thereforee, follows that the petitioner, being a person who claims to be in possession as a tenant under the landlady, who admittedly came by the possession of the portion in dispute on surrender by Corea, who was a party to the proceedings and had taken advantage of the exparte decree, are within the reach of the Court and are bound to restore the possession of the portion in dispute to Periera. I do not see any reason why, in the facts and circumstances of this case, the legal obligation cast on the petitioner, as indeed the others, to restore the possession of the property to Periera, who was wrongfully deprived of it, should not be enforced by the Court. There is no reason why the solemn duty cast on the Court to make such a restoration should not be discharged by it. The contention that Periera was merely a licensee or, even if a sub-tenant, was an unauthorised sub-tenant and, thereforee held the property on a precarious tenure which would not survive judicial scrutiny and the claim of Corea to dispossess Periera was bound to succeed in the suit, which has been restored, to my mind, would not justify the benefit of restitution being declined. It has been pointed out above that the judgment-debtor would be entitled to restoration even though ultimately he may lose it or was even bound to lose it and restoration proceedings were justified by the Supreme Court, even though at the trial of the suit, a decree had already been passed in favor of the decree holder, who was required to make the restoration. It is also of no avail that the surrender by Corea in favor of the landlady did not amount to transfer of property because it did amount to dealing with the property in a manner that was prejudicial to the right of Periera. (In paras 11 to 13, request of petitioner to withdraw petition is declined and the order about civil prison is set aside with direction that it should be made only after applying law on the subject).
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