An executing court is mandated to adjudicate upon the merits of an objection filed by a third-party purchaser resisting possession. Summary rejection of such an application, which involves mixed questions of law and fact, is legally impermissible.

ORDER

1. Leave granted.

2. The present appeal arises out of the judgment and order dated 18th January 2018 passed by the Madurai Bench of the High Court of Madras in C.R.P. (NPD)(MD) No. 1307 of 2008.

3. The facts giving rise to the present appeal are as follows:

3.1. The respondent filed a suit being O.S.No.315 of 1986 against her husband, one Rajaram, praying for past maintenance of Rs.1,500/- and future maintenance of Rs.300/- per month, along with a charge over the suit property in case of failure to pay.

3.2. In the said suit, the respondent also filed I.A.No.823 of 1986 praying for an injunction restraining the defendant-Rajaram from alienating or encumbering the suit property. The injunction was granted on 24th October 1986.

3.3. The Trial Court, vide order dated 2nd January 1990, decreed the suit as prayed for and a charge was created over the suit property.

3.4. The defendant-Rajaram filed an appeal being A.S.No.21 of 1990, which was dismissed for default.

3.5. In 1994, the respondent filed an execution petition being E.P.No.80 of 1995, seeking to execute the decree by bringing the suit property to sale, since her husband had not paid the decretal amount.

3.6. It is relevant to note that the respondent’s husband, Rajaram, was one of the partners of M/s Sri Gomal Industries, which had availed a loan from Indian Bank, Trichy. On 1st July 1987, Rajaram had mortgaged the suit property as security for the said loan.

3.7. Upon default in repayment, the Bank filed a mortgage suit being O.S.No.444 of 1995 for recovery of Rs.11,49,363 & 75 paise with costs against the partnership firm. This suit was subsequently transferred to the Debt Recovery Tribunal, Chennai (“DRT”).

3.8. One Subburam and one Jeyalaxmi, who were the brother and sister of Rajaram and also partners in the firm, filed an application under Order 21 Rule 58 of the Code of Civil Procedure, 1908 (“CPC”) being E.A.No.99 of 1996 in the aforesaid suit, seeking attachment of the suit property.

3.9. E.A.No.99 of 1996 was dismissed on 6th October 1999 on the finding that the property exclusively belonged to Rajaram and that M/s Sri Gomal Industries was not a registered firm.

3.10. On 18th August 2001, the DRT, Chennai passed a decree against the firm.

3.11. The Bank thereafter brought the suit property to court auction sale on 10th October 2002.

3.12. Since there were no other bidders, the respondent herself purchased the property at the auction sale on 25th October 2002 for Rs.41,000/-.

3.13. Unaware of this, the appellant purchased the same property at court auction for Rs.3,70,000/- on 2nd December 2002. The sale was confirmed by the DRT on 16th January 2003, and a possession certificate was issued in the appellant’s favour on 12th March 2003.

3.14. On 6th April 2003, the respondent filed E.A.No.144 of 2003 in E.P.No.80 of 1995 under Order 21 Rule 11 CPC, seeking delivery of possession of the suit property.

3.15. On 4th November 2003, a sale certificate was issued in favour of the appellant and registered before the concerned Sub-Registrar.

3.16. The appellant also obtained an approved building plan and had the patta mutated in her name on 21st April 2003.

3.17. Upon learning of the respondent’s purchase, the appellant filed E.A.No.33 of 2004 in E.A.No.144 of 2003 under Order 21 Rule 97 CPC, objecting to the delivery of possession to the respondent on the ground that the appellant was already in legal possession of the property pursuant to her purchase through the DRT.

3.18. The respondent filed E.A.No.423 of 2007, challenging the maintainability of E.A.