Prakash Narain, J.
(1) A very anomalous situation which sometimes arises in courts is whether an innocent party dragged into litigation should on account of technicalities of law be deprived of his rights or fruits of labour.
(2) Shop No. 1/B-7, Model Town, Delhi, is owned by one Jaswant Kaur. Gurjoginder Singh was a tenant under her in that shop. On February 19, 1971, Jaswant Kaur filed a petition for eviction of the tenant, Gurjoginder Singh, on the ground of non-payment of rent. An order for eviction was passed ex parte on July 22, 1971, and Jaswant Kaur took possession of the shop in execution of the warrant of possession in October, 1971. On October 26/27, 1971, Gurjoginder Singh moved an application under 0.9, Rule 13 Civil Procedure Code . for setting aside of the ex parte order of eviction against him. Notice of this application was issued to Jaswant Kaur. In the meanwhile on April 20, 1973, Jaswant Kaur entered into an agreement of tenancy with Sham Lal Dhingra, appellant, to let the aforesaid shop to him on a rent of Rs. 100.00 Sham Lal Dhingra was inducted into the premises with effect from May 1, 1973, as a tenant under JaswantKaur. Sham Lal Dhingra paid Rs. 8000.00 by way of security to Jaswant Kaur. It is an admitted case that Sham Lal Dhingra did not know about the eviction of Gurjoginder Singh. The application under 0.9. R. 13, Civil Procedure Code . moved by Gurjoginder Singh was dismissed by the trial ..Court on April 28, 1976, Gurjoginder Singh's appeal to the Rent Control Tribunal on December 6, 1976. Thus, the eviction petition filed by Jaswant Kaur on February 19, 1971, got revived after almost five years. Gurjoginder Singh then moved the Rent Controller on December 19, 1976, for restoration of the possession of the shop which had been taken in execution of the warrant of eviction. The Rent Controller granted this application on May 13, 1977, and directed issue of warrant of possession. Sham Lal Dhingra was unaware of these proceedings. When he came to know of them he filed objections under Section 25 of the Delhi Rent Control Act, read with Section 46 of the Code of Civil Procedure on July 7, 1977, pleading that he was a tenant in his own right being a bona fide transferee from Jaswant Kaur, and, thereforee, he could not be dispossessed. Sham Lal Dhingra's objections were dismissed by Rent Controller on July 30, 1977. An appeal to the Rent Control Tribunal was also dismissed on October 5, 1978. Sham Lal Dhingra now appeals to this court.
(3) The courts below have been prompted to dismiss the objections of Sham Lal Dhingra, appellant, and direct that possession of the shop be restored to Gurjoginder Singh on the basis of the rule enunciated in some Single Bench judgments of this court. The Rent Control Tribunal has referred to two decisions of this court. We may notice them and analyze what has been held and in what circumstances.
(4) In Jugal Kishore v. Maharaj Bahadur, 1978 Rajdhani, Lr (Notes) 80, relied upon by the Rent Control Tribunal, our brother, Avadh Behari Rohtagi, J. ordered restoration of possession by invoking the principle contained in Section 144, C. P. C. in our respectful opinion, in the facts of the case the rule enunciated was correct. The appellant had used for eviction and obtained an ex parte order of eviction. In execution of the exparte order of eviction possession was taken on October 20, 1970. The tenant applied for setting aside of the ex part order but the application was dismissed. In appeal the tenant's application was granted. Thereupon the tenant applied for restitution of possession. The landlord resisted the application and, inter alia, pleaded that he had in the meantime rented out the premises to somebody else and it would be injustice to dispossess the new tenant it was held that the landlord could not take up this plea as the tenant had been dispossessed by an erroneous action and the landlord is bound to restore possession to the tenant in view of the provisions of.Section 144 C. P. C. The learned Judge observed that the landlord obtained possession on an order of court which was subsequently found to be erroneous. In equity he should not be allowed to retain the benefit of a wrong order. To this extent one can have no quarrel with the proposition laid down. The learned Judge, however, went on to observe that even a transferee is bound by it.
(5) Section 144(1) of the Code of Civil Procedure reads as under ;-
'144(1) Where and in so far as a decree or an order is varied or reversed in any appeal, revision or either proceeding or is set aside or modified in any suit instituted for the purpose, the Court which passed the decree or order shall, on , application of any party entitled to any benefit by way of 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, reversed, set aside or modified, and for this purpose the Court may make any orders, including orders for the refund of costs and for the payment of interest, damages compensation and mesne profits, which are properly consequential on such variation, reversal, setting aside or modification of the decree or order. Explanationn :- For the purposes of sub-section (1), the expression Court which passed the order shall be deemed to include - (a) where the decree or order has been varied or reversed in exercise of' appellate or revisional jurisdiction, the Court of first instance; (b) Where the decree or order has been set aside by a separate suit, the Court of first instance which passed such decree or order; (c) where the Court of first instance has ceased to exist or has ceased to have jurisdiction to execute it, the Court which, if the suit wherein the decree or order was passed were instituted at the time of making the application for restitution under this section, would have jurisdiction to try such suit'. We should presently deal with what this provision means.
(6) In Khairati Ram Nayyar v. K. B. Advani, 1972 Delhi L T 522, another learned single Judge of this court was concerned with the powers of the Rent Controller and whether he could order restitution under Section 144 C.P.C. on the setting aside of an exparte order of eviction. D.K. Kapur, J, in construing the provisions of Section 42 of the Delhi Rent Control Act and relying on Mahijibhai M. Barot v. Patel Manibhai, : 2SCR436 , held that if the Rent Controller can execute his order of eviction he could also order of eviction he could also order restitution under Section 144 Civil Procedure Code . Here also, the restitution application moved by the tenant was being resisted by the landlord.
(7) The same view was expressed by S.N. Shankar, J. in Subhash Chander v. Rehmat Ullah,1973 Ren Cr 566 (Delhi). The basis of the decision was the observations of the Supreme Court in Binayak Swain v. Ramesh Chandra Panigrabi. : 3SCR24 . The Supreme Court had observed as under :-
'THE principle of the doctrine of restitution is fiat on the reversal of a decree, the law imposes an obligation on the parly to the suit who received the benefit of the erroneous decree to make restitution to the other parly for what he has lost. This obligation arises automatically on the reversal or modification of the decree and necessarily carries with it the right to restitution of all that has been done under the erroneous decree; and the Court in making restitution is bound to restore the partics, 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'.
(8) In our view on a reading of Section 144 C. P. C. along with Sections 41 and 42 of the Rent Control Act there can be no doubt that inter parties on anearlier order of the court being varied by an appellate court the order of the appellate court or the varied order has to be given effect to and parties to the litigation cannot be heard to plead any excuse. The position will, however, be different where bona fide third parties arc involved as in present case. For the principles that will be attracted on a motion of a bona fide third party guidance can be had from what has been laid down by the Supreme Court in Binayak Swain v. Ramesh Chandra Panigrahi, : 3SCR24 .
(9) Our respected brother, Shankar, J., had relied on Binayak Swain's case.to apply the principle of Section 144 C. P. C. in the circumstances of the case that was before him. As we have noticed earlier, in all the cases relied upon on behalf of the respondents it was the landlord who was opposing restitution. If the bona fide tenant inducted in the premises objects to restitution, then the principle is again to be found, as we have said earlier, in Binayak Swain's case. Indeed, the Supreme Court has noticed with approval the observations of the Privy Council with regard to rights of bona fide third parties made in Zainul Abdin Khan v. Muhammad Asghar Ali Khan, (1888) 2nd 10 All 166 (PC), and has quoted the observations of Sir B. Peacock, 'It appears to their Lordships that there is a great distinction between the decree-holders who came in and purchased under their own decree, which was afterwards reversed on appeal, and the bona fide purchasers who came in and bought at the sale in execution of the decree to which they were no parties, and at a time when that decree was a valid decree, and when the order for the sale was a valid order.' In Zainul Abdin Khan's case the Judicial Committee had held that as against the latter purchasers, whose position was different from a decree-holding purchaser, the suit must be dismissed. The Supreme Court has approved this rule.
(10) Thus, the distinction between parties to the original lis on the one hand and bona fide transferees on the other must be kept in mind. Parties to the lis cannot be heard to raise any objection against compliance of the appellate decree or order. A party entitled to restitution must be granted that as against the opposite party in the suit or the original litigation. A bona fide purchaser or transferee stands on a different footing. His right being an independent right cannot be disturbed in equity or in law. Even Section 144 Civil Procedure Code . does not warrant it.
(11) The Delhi Rent Control Act which is a special law has to be applied in the terms of the enactment. The Legislature in its , by enacting Section 25 made an eviction order executable not only against the tenant but all those who are in possession or occupation of the premises. Section 42 of that Act makes the order executable as a decree of the Civil Court. When an order of eviction is varied in appeal, it is the appellate order which must be given effect to. In the present case when the ex parte eviction order against Gurjoginder Singh was set aside in appeal the Rent Controller was right in granting the application of Gurjoginder Singh for restitution of the possession. Had Jaswant Kaur opposed restitution she could not be heard to say that she had in the meanwhile let out the premises to someone else. Sham Lal Dhingra's application, however, could not be dismissed. He is a bona fide tenant without notice of the litigation between Jaswant Kaur and Gurjoginder Singh. He is a tenant to whom the protection of Section 14 would be available. We fail to understand how in these circumstances his application could be dismissed and he be directed to hand over possession to Gurjoginder Singh. Section 144 C. P. C. would not be attracted (and here we respectfully differ with the observations of Avadh Behari Rohtagi) to bona fide transferee as Sec, 144 C. P. C. is available only inter parties i.e. parties to the original lis.
(12) Both in law and in equity, thereforee, Sham Lal Dhingra cannot be dispossessed. What remedy Gurjoginder Singh has against Jaswant Kauris something on which we are not required to comment in the present appeal.
(13) We, thereforee, accept the appeal with costs. Counsel's fee Rs. 250.00 .