M.K Mukherjee, J.— In February 1971 Smt Jaswant Kaur, Respondent 1 herein, initiated legal proceeding before the Rent Controller for eviction of her tenant, the appellant herein, and in execution of the ex parte order passed therein obtained possession of the suit premises in October 1971. Immediately thereafter the appellant filed an application under Order 9 Rule 13 of the Code of Civil Procedure which was dismissed by the Rent Controller. However, in appeal the ex parte order of eviction was set aside by the Rent Control Tribunal and the proceeding for eviction filed by Respondent 1 was revived. On such revival the appellant filed an application under Section 144 of the Code of Civil Procedure before the Rent Controller for restoration of his possession which was allowed by an order dated May 13, 1977 and warrant for possession was issued. Before, however, possession could be taken pursuant thereto, Respondent 2 filed an objection before the Rent Controller contending that in terms of an agreement he had arrived at with Respondent 1 he took possession of the suit premises on May 1, 1973 as a tenant under her. He further contended that he was a bona fide transferee and that he did not know about the earlier eviction proceeding initiated against the erstwhile tenant. Consequently, he contended, he was not liable to be dispossessed pursuant to the warrant of possession. The Rent Controller overruled the objection so raised and the appeal preferred by Respondent 2 against the order of the Rent Controller was dismissed by Rent Control Tribunal. Thereafter he moved the Delhi High Court by way of a second appeal which was allowed on the ground that as a bona fide transferee Respondent 2 had independent right to occupy the suit premises and his right could not be disturbed either in equity or in law under Section 144 of the Code of Civil Procedure. Hence, this appeal by the original tenant.
2. In arriving at its conclusion that as a bona fide transferee Respondent 2 could not be evicted from the suit premises notwithstanding the order for restitution of possession passed in favour of the appellant the High Court equated the status of Respondent 2 with that of a bona fide purchaser in an auction sale. Then, drawing inspiration from the judgment of this Court in Binayak Swain v. Ramesh Chandra Panigrahi AIR 1966 SC 948, (1966) 3 SCR 24 the High Court held that the right of a bona fide purchaser or transferee stood on a footing different from that of the parties to the suit as the former had an independent right.
3. We are unable to share the view expressed by the High Court as in our considered opinion, the status of a bona fide purchaser in an auction sale in execution of a decree to which he was not a party stands on a distinct and different footing from that of a person who is inducted as a tenant by a decreeholder-landlord. A stranger auction-purchaser does not derive his title from either the decreeholder or the judgment-debtor and therefore restitution may not be granted against him but a tenant who obtains possession from the decreeholder-landlord cannot avail of the same right as his possession as a tenant is derived from the landlord. Even in the case of Binayak Swain AIR 1966 SC 948, (1966) 3 SCR 24 which the High Court relied upon this Court has drawn a distinction between purchase made by a decreeholder and a stranger in auction-sale by quoting with approval the following observation made in the case of Zain-ul-Abdin Khan v. Muhammad Asghar Ali Khan ILR (1888) 10 All 167 (PC).
“It appears to their Lordships that there is a great distinction between the decreeholders 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.”
4. In our view the above principle will apply in the case in hand as it is the decreeholder who has put Respondent 2 in possession and, therefore, when the decree has been set aside he is bound to restore to the judgment-debtor what he gained under the decree and subsequently transferred to Respondent 2.
5. We, therefore, allow this appeal, set aside the order of the High Court and direct restoration of possession to the appellant in terms of the order passed by the Rent Controller. Needless to say such restoration will abide by the result of the eviction petition filed by Respondent 1. However, there will be no order as to costs.