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Om Prakash Garg v. Ganga Sahai And Others
Factual and Procedural Background
The appellant claimed to be a tenant inducted by the mortgagee, Narain Prasad, and resisted the respondent decree-holder’s application for delivery of possession under Order 21 Rule 35 of the Code of Civil Procedure, 1908 (CPC). The appellant asserted protection under the Rajasthan Premises (Control of Rent and Eviction) Act, 1950.
The executing court rejected the appellant’s objection and issued a warrant of possession in favour of the respondent. On appeal, the Additional District Judge reversed the executing court, holding that the appellant (as a tenant inducted by the mortgagee) was entitled to the Act’s protection, could not be evicted in execution of the final decree for redemption, and that the respondent was only entitled to symbolical possession. The respondent appealed to the High Court, where a Single Judge allowed the respondent’s position by applying Supreme Court authority and concluded that the appellant had no subsisting lease after redemption. The matter then came before the Supreme Court in the present appeal.
The opinion also records the underlying timeline: the subject property was attached on 21-12-1962 in execution of a decree obtained by the respondent against Shonrilal; the property (already mortgaged to Narain Prasad) was sold in execution and purchased by the respondent on 4-9-1963; the sale was confirmed on 24-5-1965; the respondent thereafter filed a redemption suit and obtained a decree on 14-10-1967; and Narain Prasad’s appeal was dismissed on 22-1-1971. The appellant’s claimed lease was allegedly granted by Narain Prasad in March/April 1965, during the subsistence of attachment.
Legal Issues Presented
- Whether the appellant could resist execution and eviction by claiming tenancy under the mortgagee and protection under the Rajasthan Premises (Control of Rent and Eviction) Act, 1950, after a final decree for redemption had been passed.
- Whether the alleged lease in favour of the appellant was invalid/ineffective against the respondent because it was created during a subsisting attachment, attracting Section 64 CPC.
- Whether the mortgagee’s lease amounted to an act of “prudent management” within Section 76(a) of the Transfer of Property Act, 1882, so as to subsist beyond redemption.
Arguments of the Parties
The opinion does not contain a detailed account of the parties' legal arguments.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Sachalmal Parasram v. Mst Ratanbai (1973) 3 SCC 198, AIR 1972 SC 637 | A lease created by a mortgagee that is not an act of prudent management within Section 76(a) of the Transfer of Property Act, 1882 does not subsist after extinction of the mortgage by a final decree for redemption. | The High Court followed this decision to hold that the alleged lease was not an act of prudent management and therefore could not continue after the final decree for redemption; consequently, the appellant could not rely on rent-control protection because there was no subsisting lease. |
Court's Reasoning and Analysis
The Supreme Court declined to interfere with the High Court’s order. It noted that the High Court had applied the Supreme Court’s decision in Sachalmal Parasram v. Mst Ratanbai to conclude that the mortgagee’s lease was not an act of prudent management within Section 76(a) of the Transfer of Property Act, 1882, and therefore could not survive the extinction of the mortgage upon the passing of the final decree for redemption. On that basis, the appellant could not claim protection under the Rajasthan rent-control legislation because the predicate requirement—a subsisting lease—was absent.
Independently, the Supreme Court provided an additional and “short ground” for dismissal without deciding the broader question of rent-control protection post-redemption. It held that the alleged lease in favour of the appellant was made during the subsistence of an attachment (the attachment having been effected on 21-12-1962, and the lease being alleged to have been granted in March/April 1965). The Court treated the lease as affected by Section 64 CPC and therefore voidable at the instance of the respondent. Consequently, the appellant could not assert tenancy status as against the respondent decree-holder.
Holding and Implications
DISMISSED: The appeal was dismissed with costs.
The direct consequence is that the appellant’s resistance to delivery of possession failed, and the respondent’s entitlement to obtain possession in execution was effectively upheld. The appellant was granted four months’ time to vacate the premises, conditional upon furnishing the usual undertaking in the Supreme Court within four weeks. The opinion does not indicate that any new precedent was set beyond applying existing principles (including the effect of Section 64 CPC and the non-survival of certain mortgagee leases after redemption).
1. After hearing learned counsel for the appellant, we are satisfied that the order passed by the High Court does not call for any interference. The appellant who claims to be a tenant of the mortgagee Narain Prasad resisted the application made by the respondent decree-holder Ganga Sahai under Order 21 of the Rule 35 of the Code of Civil Procedure, 1908 pleading inter alia that being a tenant of the mortgagee he was entitled to the protection of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950. That objection of his was not sustained by the executing court and it accordingly issued a warrant of possession in favour of the decree-holder. The appellant went up in appeal against the order of the executive court. The Additional District Judge differed from the executing court and held that the appellant being a tenant inducted into possession by the mortgagee was entitled to the protection of the Act and therefore could not be evicted in execution of the final decree for redemption, and further held that the respondent was only entitled to symbolical possession. Aggrieved, the respondent preferred an appeal to the High Court. By the order under appeal, a learned Single Judge following the decision of this Court in Sachalmal Parasram v. Mst Ratanbai (1973) 3 SCC 198, AIR 1972 SC 637 held that the lease was not an act of prudent management on the part of the mortgagor (sic mortgagee) Narain Prasad within the meaning of Section 76(a) of the Transfer of Property Act, 1882 and therefore the alleged lease could not subsist after the extinction of the mortgage by the passing of the final decree for redemption and thus the appellant could not take advantage of the Act as there was no subsisting lease in his favour. After hearing the learned counsel, we are not persuaded to take a different view than the one reached by the High Court.
2. In our opinion, the appeal must also fail for another reason. Without going into the question as to whether the appellant being the mortgagee's tenant could claim the protection of the Act despite the passing of the final decree for redemption, the appeal can be disposed of on the short ground that the alleged lease under which the appellant claims the status of a tenant was made in contravention of Section 64 of the Code of Civil Procedure, 1908 and thus voidable at the instance of the respondent. The subject-matter in dispute was attached on 21-12-1962 in execution of the decree obtained by the respondent against one Shonrilal. The property was mortgaged with one Narain Prasad and was sold in execution and purchased by the respondent on 4-9-1963. The sale was confirmed in favour of the respondent decree-holder on 24-5-1965. Afterwards, the respondent brought a suit for redemption and obtained a decree on 14-10-1967. The appeal of Narain Prasad was dismissed on 22-1-1971. The appellant claims to be the mortgagee's tenant. It is alleged that the property was leased in his favour by one mortgagee Narain Prasad sometime in March/April 1965 i.e during the subsistence of the attachment. The alleged lease was therefore affected by Section 64 of the Code of Civil Procedure. That being so, the appellant cannot claim the status of a tenant as against the respondent.
3. Accordingly, the appeal must fail and is dismissed with costs. The appellant is given four months' time to vacate the premises on his furnishing usual undertaking in this Court within four weeks from today.
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