(Prayer: The execution petition filed under Order XIV Rule 10 of O.S.Rules r/w Order XXI Rule 35 & 36 of Civil Procedure Code praying to order delivery of possession forthwith from the hands of the Obstructors to the petitioner/Decree Holder.)

1. This execution petition has been filed seeking delivery of possession pursuant to a decree in C.S.No.810 of 1996.

2. The short facts that led the Master directing the execution petition to be posted before the Court are as follows:

The decree holder claims to have entered into an agreement of sale on 22.06.1995 with one S.Narasimhan to purchase the property in question for a total sale consideration of Rs.19,00,000/- and has paid an advance of Rs.80,000/-. The said agreement of sale itself discloses the equitable mortgage created by the vendor in favour of Indian Overseas Bank for Rs.5,00,000/- and another simple mortgage created in favour of one Mr.Nemichand Bansali for a sum of Rs.50,000/-. The said agreement also stipulates that if the vendor is unable to fulfil the commitment by 31.08.1995, he shall return the advance amount paid with 15% interest per annum from 01.01.1995. If the purchaser is unable to fulfil his part, the advance paid will not be returned.

3. Based on the said agreement, the plaintiff/decree holder instituted a suit in C.S.No. 810 of 1996. Pending the said suit the sole defendant in the suit namely, the agreement vendor died on 02.04.1998. However, his legal representatives were not brought on record in the suit. An exparte decree came to be passed against the dead person on 28.02.2001. After obtaining the said ex-parte decree, the decree holder appears to have filed an Execution Petition in E.P.No. 73 of 2001. Notice sent in the execution petition appears to have been returned on the ground that the judgment debtor is dead and subsequently the legal heirs were impleaded. Upon their failure to execute the sale deed, this Court directed a sale deed to be executed by its Officer and a sale deed came to be executed on 04.04.2005. Based on that sale deed, now the decree holder has come forward with this execution petition seeking delivery of possession.

4. In the mean time, the Indian Overseas Bank, which had obtained an equitable mortgage in its favour filed a suit on the said mortgage on 09.11.1993 in this Court. The said suit was transferred to the City Civil Court and numbered as O.S.No.11105 of 1996. A preliminary decree came to be passed by the City Civil Court on 17.01.1997. Thereafter, the bank initiated proceedings under SARFAESI Act and the property was sold in the public auction conducted by the bank by issuing a demand notice on 10.01.2003 and possession notice on 21.11.2003. The auction notice was also issued on 23.02.2004 and the auction was ultimately held on 24.03.2004. The respondents 1 and 2 in this execution petition were declared as highest bidders and sale certificate was also issued in favour of the respondents 1 and 2 in the execution petition on 31.03.2004. It is the case of the respondents 1 and 2 that they were in possession as usufructory mortgagees even before the suit. The decree holder filed an Execution Petition in E.P.No. 57 of 2006 by impleading the respondents, who are purchasers under the SARFAESI Act and sought for delivery of possession.

5. Upon notice, the respondents are objecting to the execution of the decree on the following grounds:

(i) The decree having been passed against the dead person is invalid and is a nullity.

(ii) The respondents 1 and 2 being purchasers in an auction held by the Bank under the SARFAESI Act on the basis of a preliminary decree obtained on the basis of a mortgage, which preceded the agreement of sale are entitled to the property, and the decree holder, who has obtained an exparte decree based on an agreement entered into, pending the suit on the mortgage filed by the bank cannot seek to execute the decree against them.

6. The learned counsel for the decree holder would rely upon the judgment of the