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SUPREME COURT OF INDIA
Indira Banerjee, J.K. Maheshwari, JJ.
Sriram Housing Finance And Investment India Ltd. – Appellant
Versus
Omesh Mishra Memorial Charitable Trust – Respondent
Civil Appeal No. 4649 of 2022 [Arising Out of SLP (C) No. 12833 of 2014]
Decided on : 06-07-2022
Civil Procedure Code, 1908 – Order XXI Rules 97 to 102 – Objection to execution of decree – Under Rule 97, it is only the ‘decree holder’ who is resistance or obstruction by ‘any person’ – Appellant is a bonafide purchaser of property and not ‘decree holder’ – It is respondent trust alongwith legal heirs of deceased owner of property who are decree holders and not appellant – Appellant cannot take shelter of Rule 97 to raise objections against execution of decree passed in favour of respondent – Appellant was never dispossessed from property in question and till date, possession of same rests with appellant – Appellant cannot be said to be entitled to make application under Rule 99 raising objections in execution proceedings – In such circumstances, Executing Court had no occasion to frame issues and give direction to parties to lead evidence on objections raised by appellant – By doing so, Executing Court transgressed scope of Order XXI Rule 97 and Rule 99 – High Court has rightly set aside order of Trial Court entertaining objections filed by appellant under Order XXI Rule 97 to Rule 102 – Appeal dismissed with a direction to Executing Court to decide execution case as expeditiously as possible not later than six months. (Paras 15, 16 and 17)
Facts of the case:
Present appeal is arising out of the judgment dated 16.04.2014 passed by High Court of Delhi in C.M. (M) No.493 of 2012, preferred by appellant company herein under Article 227 of Constitution of India, against the order dated 13.01.2012 passed in Execution Petition No.46 of 2006, vide which, Executing Court entertained the objections filed by appellant company and proceeded to frame issues with a direction to the parties to lead evidence on those issues.
Findings of Court:
Appellant in the instant case was never dispossessed from the property in question and till date, as contended and unrefuted, possession of same rests with the appellant. Appellant cannot be said to be entitled to make application under Rule 99 raising objections in execution proceedings since he has never been dispossessed as required under Rule 99.
Result : Appeal dismissed.
JUDGMENT
J.K. Maheshwari, J.
Leave granted.
2. This appeal is arising out of the judgment dated 16.04.2014 passed by High Court of Delhi in C.M. (M) No.493 of 2012, preferred by appellant company herein under Article 227 of Constitution of India, against the order dated 13.01.2012 passed in Execution Petition No.46 of 2006, vide which, the Executing Court entertained the objections filed by appellant company and proceeded to frame issues with a direction to the parties to lead evidence on those issues.
3. The Execution Petition was filed by respondent trust, alongwith legal heirs of late Shri N.D. Mishra for execution of judgment and decree dated 01.02.2003 passed by Trial Court in Civil Suit No. 278 of 2002. The suit was filed by late Shri N.D. Mishra making prayer for a decree for: (i) possession of suit property; (ii) sum of Rs.8000/- on account of arrear of rent for the month of May, 1994; (iii) sum of Rs.30,000/- towards damages/mesne profits/other charges for unauthorized use and occupation by the defendant with effect from 01.06.1994 till the date the defendant delivers back possession of suit property; (iv) permanent injunction against the defendant restraining her from using the suit property; and (v) mandatory injunction against the defendant restraining her from obstructing the plaintiff in enjoying the right of passage from main entrance on ground floor to the terrace. The Trial Court decreed the suit in favour of plaintiffs while restraining the defendant from obstructing the plaintiff from enjoying the right of passage from the main entrance on ground floor to the terrace and from raising further construction. Further regarding damages and mesne profits, the Trial Court directed payment of Rs.30,000/- per month with effect from 01.06.1994 till the date of delivery of possession of suit property by the defendant. Execution proceedings were initiated by decree holders and being aggrieved, the appellant company filed objections before Executing Court, which were duly considered and decided by the Court vide order dated 13.01.2012. The said order was challenged by the respondent trust before the High Court by filing the petition, which was allowed vide order dated 16.04.2014 setting aside the order of the Executing Court.
4. The facts briefly put are that, one late Shri N.D. Mishra (now deceased) was the owner of the property in dispute i.e. Kothi No.27, situated at Ishwar Nagar in New Delhi. The disputed property was self-acquired by the deceased. Shri N.D. Mishra had a family consisting his wife Smt. Raj Mishra (now deceased), two sons namely Mr. Yogesh Mishra and Mr. Omesh Mishra (now deceased) and three married daughters namely Smt. Dheera Sharma, Smt. Neena Bharadwaj and Smt. Meena Sharma. In memory of the deceased son, the respondent trust was established in year 1992 by Smt. Raj Mishra in the name and style of "Omesh Mishra Memorial Charitable Trust".
5. The history of instant litigation starts from the time when late Shri N.D. Mishra in year 1986, lent a portion of the ground floor of the suit property on lease to one Ms. Nisha Chauhan (hereinafter referred to as tenant) for a period of two years at the monthly lease rent of Rs. 7000/-. On expiry of the period, the lease was terminated but the tenant failed to vacate the suit property, whereafter, Shri N.D. Mishra filed Civil Suit No.181 of 1994 (i.e. suit for possession/recovery of arrears of rent/damages/mesne profit and mandatory/permanent injunction) against the tenant. During the pendency of suit, Shri N.D. Mishra died on 27.05.1998. On 13.08.1998, by filing application under Order XXII Rule 3 of Code of Civil Procedure, 1908 (hereinafter referred to as CPC), substitution was allowed by Trial Court and Smt. Raj Mishra (wife), Mr. Yogesh Mishra (son), Mrs. Dheera Sharma, Mrs. Neena Bharadwaj and Mrs. Meena Sharma (daughters) were substituted as legal heirs. Later, one Subhash Chander Sabharwal (the authorized trustee of respondent trust herein) moved an applic
Objection to execution of decree – Appellant who is a bonafide purchaser of property and not decree holder, cannot take shelter of Rule 97 of CPC to raise objections against execution of decree passe....
The main legal point established in the judgment is that a bonafide purchaser, not being the decree holder and not having been dispossessed of the property, is not entitled to raise objections under ....
A third party claiming under a judgment debtor cannot file an application under Order XXI Rule 97; they must file under Rule 99 instead.
A person in possession of property has the right to object to the execution of a decree under Order 21 Rule 97 CPC, and the trial court must consider such objections before proceeding with execution.
The executing court is competent to consider all questions raised by the persons offering obstruction against execution of the decree and pass appropriate order, which is to be treated as a decree. T....
The court reinforced that obstruction claims in execution proceedings must be heard to uphold rights, ensuring adherence to natural justice principles.
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