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CS-281/2010 Page:-3/42 Bengali Mal, Sh. Shyam Lal and Sh. Chotte Lal for Rs. 80,000/- and on the same day Sh. Ganga Ram executed a lease deed in favour of the mortgagees agreeing to pay Rs. 650/- per month as rent for the property. It was further stated that another charge was created on said property on 13.07.28 and another mortgage deed was executed by Sh. Ganga Ram in favour of aforementioned mortgagees to secure Rs. 25,000/-. It was also stated in plaint that by the third deed of mortgage dated 19.7.28 for Rs. 45,000/- in addition to the already secured property another property namely H. No. 412, Chandni Chowk, Delhi was mortgaged with possession and on the same day a lease deed was executed with respect to same property by the mortgagor in favour of mortgagees agreeing to pay rent at the rate of Rs. 32/- per month. It was also averred in plaint that the mortgagees on 23.12.30 filed a suit No. 109/1932 to enforce their rights under the mortgage against Sh. Ganga Ram impleading Sh. Bala Prasad and Sh. Alopi Prasad subsequent mortgagees of the property. It was also stated that on 27.02.1931 a compromise was entered into between mortgagor and the mortgagees and they agreed to dispose off the suit on terms as mentioned in plaint. It was also stated in suit that on 25.01.1935, a preliminary decree was passed under order 34 CPC with cost and future interest @ 9% p. a. to be realized from the sale of mortgaged property and as the mortgagor failed to pay the amount due from him to the mortgagees as adjudicated upon in the preliminary decree as found due by Lahore High Court, proceedings for final decree were initiated. It was also stated that ultimately final decree came to be passed on 23.05.1940 enabling and authorizing to realize the amount of Rs. 2,10,076.13P which CS-281/2010 Page:-4/42 was due on 06.01.1931 together with interest at the rate of 9% per annum by the sale of mortgaged property and further directing that money realized on sale after deduction of expenses shall be applied in the payment of amount payable to the mortgagees under the preliminary decree. It was also stated that mortgagees/decree holders on 01.4.52 filed an execution application and prayed that mortgaged property be ordered to be sold for realization of amount of decree and on realization the amount be paid to them. It was pleaded in suit that in Execution application No. 28/69 the Hon'ble High Court on 21.07.1970 issued a sale proclamation wherein particulars of mortgaged property to be sold were mentioned and it was stated that mortgaged property was free from encumbrances and rental of property was Rs. 1275.56 P exclusive of water, tax and plaintiff firm was declared to be the highest bidder in the public auction held on 25.09.1970 and the objections against the sale were filed and same were dismissed. It was averred that sale was confirmed by the Hon'ble High Court and on 22.08.1972 required sale certificate was issued in favour of plaintiff with respect to the property No. 391 to 399, 405 to 406, Chandni Chowk, Delhi by the Hon'ble High Court of Delhi. It was also stated that on 17.08.1973, the plaintiff filed an application registered as I. A. No. 2006/1973 in Ex. No. 28/1969 U/o 21 Rule 95 & 96 read with Section 151 CPC inter-alia praying that as per the compromise which have been arrived between the mortgagor and the mortgagees, the possession of property was delivered by the mortgagor to the mortgagees on 01.03.1931 from which date the mortgagees were to realize rent from the tenants and to keep the proper accounts and plaintiff CS-281/2010 Page:-5/42 prayed that they are entitled to take back vacant possession of that part of property which is in occupation of person who had been inducted by the mortgagees after 01.03.1931 and with respect to the remaining part of the property, the plaintiff firm prayed that they were entitled only to symbolic possession since the same was in occupation of said tenants prior to 01.03.1931 and hence plaintiff prayed for warrants of possession of the properties under the occupation of various occupants. It was further averred in plaint that occupants including the present defendant filed objections to the execution application and it resisted the claim of plaintiff on the ground that they are not in occupation of any portion of property on behalf of JD/mortgagor but are in occupation of same as tenants of the mortgagees and thereafter, issues were framed and evidence was also recorded. It was also pleaded in suit that Ld. Single Judge of Hon'ble High Court decided the I. A. No. 2006/1973 in Ex. No. 28/69 vide judgment dated 10.03.1977 and held that the plaintiff was entitled only to the symbolic possession and application U/o 21 Rule 95 & 96 was not maintainable and thus Ld. Single Judge directed that only symbolic possession be given to the plaintiff Under Rule 96 of Order 21 CPC. Thereafter, plaintiff firm filed appeal EFA (OS) No. 3/1977 against the said order and the appeal came up for the hearing before Division Bench on 20.03.1987 and question of law was framed to the effect that "Whether a tenant inducted by the mortgagee in possession can claim the benefit of protection offered by Delhi Rent Control legislation after redemption of mortgage" and matter was referred to larger bench. It was also mentioned in plaint that full bench in EFA (OS) No. 3/77 vide CS-281/2010 Page:-6/42 judgment dated 11.09.1987 answered the reference holding that the tenants inducted by a mortgagee in possession cannot claim the benefit of protection offered by the Delhi Rent Control legislation after redemption of the mortgage, unless the mortgagor had permitted the mortgagee to inducted tenant even beyond the terms of the mortgage or has concurred to the creation of lease or has adopted it. It was also averred in suit that objectors including the defendant herein filed Special Leave Petition before the Hon'ble Supreme Court against the decision of full bench and the Hon'ble Supreme Court in Civil Appeal No. 875/1988 vide order dated 27.09.94 disposed of civil appeal holding that Ld. Division Bench should hear and dispose off appeal in the light of judgment and full bench and it was held that it shall be open to the plaintiff to contend that full bench judgment has really no application to the facts of the case, it shall be also open to all the parties to take such contentions available to them and if necessary to challenge the correctness of the decision of division bench on that basis. It was also averred that at the time of filing of appeal 16 persons including the present defendant were impleaded as respondents from whom the plaintiff claimed possession and by an order passed in C. M. No. 102 of 1995 on 25.01.1995 names of few respondents were deleted since either they gave up their claim or have handed over the possession and only few remained as respondents including the defendants herein. It was also pleaded in suit that Ld. Division Bench in EFA (OS) No. 3/77 vide judgment dated 21.11.2000 held that plaintiff being an outsider not party to the suit No. 102/30 & 144/33 which resulted in compromise, preliminary and final decree in execution CS-281/2010 Page:-7/42 of which the property was put on sale, will not be entitled to recover physical possession from the respondent including the defendant in view of the provisions contained in Order 21 Rule 95 and the appeal was dismissed holding that they are not making any adjudication on the legality and validity of the tenancies since the said question is raised in any appropriate proceedings will have to be decided therein in accordance with law. It was also stated that plaintiff thereafter filed Special Leave Petition before the Hon'ble Supreme Court of India against the judgment of Division Bench and the Hon'ble Supreme Court of India in Civil Appeal No. 7250/02 vide judgment dated 12.02.2009 dismissed the appeal filed by the plaintiff and held that plaintiff was at liberty to file a fresh suit against the tenants for eviction and arrears of rent. It was stated in suit that occupation of defendant in the suit property is illegal and unauthorized and they are liable to handover the vacant possession of the suit property to the plaintiff who is the lawful owner of suit property and defendant cannot claim the protection of the Delhi Rent Control Act as they ceases to be the tenants after sale of property in favour of plaintiff and powers of the mortgagor are different from the mortgagees as provided under section 65 A of the transfer of the Property Act 1929. It was also averred in plaint that firm M/s Lakhi Ram Mahi Lal was inducted on 02.09.1970, one other tenant Samman Oil & General Mills was inducted on 20.03.1970 and M/s Indraprastha Finance Company was inducted on 16.09.1970 and whereas the sale proclamation of property was ordered on 21.07.1970 and the date of auction was 25.09.1970. It was also pleaded that on 25.09.1970, the rights of the defendant in suit property have CS-281/2010 Page:-8/42 ended and they have already enjoyed the property for more than 39 years up to the date of filing of present suit and even without payment of any use and occupation charges and defendants w.e.f. 25.09.1970 are in unauthorized possession of suit property and are liable to vacate and handover the same to the plaintiff alongwith damages. It was also stated that while the proceedings were pending before the Hon'ble High Court, plaintiff moved application U/s 151 CPC and same was registered as C. M. No. 1392/1995 in PFA No. 3/1977 and prayed that occupants including the defendants be directed to pay the damages for use and occupation of property, however, at the time of passing the judgment by the Hon'ble High Court no orders on the said application were passed since the court was of the opinion that plaintiff cannot recover possession from the occupants under order 21 Rule 96 CPC and would have to file separate suit in this regard and as such plaintiff in the present suit is entitled to claim the damages for the unauthorized use and occupation of suit property at the market rate w.e.f. 25.09.1970 with pendentelite and future damages also at the market rate of rent till the suit property is actually handed over to the plaintiff by the defendants. Hence, present suit was filed by plaintiff against the defendants seeking reliefs as mentioned in plaint.

CS-281/2010 Page:-30/42 The defendant has wrongly contended that since the entire amount due was not realized by the sale of the property as such the mortgage was not discharged. On the contrary, it is rightly submitted by the plaintiff that as after the sale of the property in execution by the court the mortgage ended and it does not survive any further and the charge in the property ended it is for the decree holder to recover the balance from JD and the charge in the property extinguishes. The defendant cannot take the advantage of section 76(a) of TPA to claim that the act of mortgagees in inducting them was of prudent management as it was held by Full Bench of Delhi High Court in EFA (OS) No.3/1977 vide order dated 11.9.87 while relying on decision of (1969 (3) SCC 79) and other cases that protection under section 76(a) TPA cannot be made application to urban properties as it applied to agriculture properties.

14. Issue No. 6. Whether the suit is within limitation?OPP:-

Under this issue, the plaintiff has submitted that because of provisions of Section 14 of Limitation Act, the plaintiff is entitled to claim benefit of the period spent in pursuing there remedies for filing application U/o 21 Rule 95 and 96 CPC on 17.08.73. The said application was decided vide judgment dated 10.03.77 in IA No. 2006/1973 in Ex. No. 28/69. The appeal against the said judgment was filed before the Division Bench of Hon'ble High Court in EFA (OS) No. 3/77 which was decided on 21.11.2000 and in between reference was made to the full bench which was decided by Hon'ble Full Bench vide their judgment dated 11.09.87. The plaintiff further challenged the judgment dated 21.11.2000 before the Hon'ble Supreme Court by filing Civil Appeal No. 7250/2002 and which was decided on 12.02.2009 and the plaintiff was given CS-281/2010 Page:-38/42 liberty to file fresh suit by the Hon'ble Supreme Court, therefore it has been rightly contended that the period from 17.08.1973 to 12.02.2009 was spent in bonafidely prosecuting with due diligence the application U/o 21 Rule 95 and 96 CPC for obtaining possession of suit property from the defendant. The present suit has been filed on 13.10.2010 within the period of 12 years after the purchase of the property by plaintiff after deducting the aforesaid period spent in abovesaid proceedings before the Hon'ble High Court of Delhi and Hon'ble Supreme Court of India.