The term 'any person' in Order 21 Rule 97 CPC includes third parties claiming independent rights, allowing them to resist execution proceedings.

O R D E R

Challenging the order passed by the Execution Court rejecting the application filed by the revision petitioner under Order 21 Rule 97 of CPC resisting execution of the decree in O.S.No.375 of 1997 on the file of the Principal District Munsif Court, Cheyyar, Tiruvannamalai, the present revision has been filed.

2.It is the case of the revision petitioner that he has purchased the subject property on 25.03.1991. When the matter stood thus, the 3^rd respondent have purchased the property in an auction conducted by the Executing Court in E.P.No.244 of 1998 to enforce the decree in O.S.No.375 of 1997. According to the revision petitioner, the attachment itself is passed after sale in favour of the revision petitioner. Despite the sale in favour of the revision petitioner much prior to the attachment, the property has been sold later to the auction purchaser. Now, an attempt has been made to dispossess the revision petitioner. Therefore, he has filed the present application under Order 21 Rule 97 of CPC resisting delivery of possession in the execution proceedings. The Executing Court rejected the application on the ground that Order 21 Rule 97 of CPC can be invoked only by the decree holder or the auction purchaser in the execution of the decree and a third party cannot maintain such application. Challenging the said order, the present revision is filed.

3.Learned counsel for the revision petitioner would submit that the approach of the trial Court is not correct as per law. Order 21 Rule 97 of CPC does not indicate that only the decree holder or the auction purchaser alone is entitled to file such application to resist or make obstruction. According to him, the expression “any person” mentioned in Order 21 Rule 97 of CPC not only relates to the decree holder or the auction purchaser, but also includes any third party who has an independent right over the subject property. It is his contention that, once a third party has an independent right over the property, he need not be made to wait till he is evicted and relegated to file a regular application to get his right adjudicated. The learned counsel submitted that the Hon'ble Supreme Court has already decided the issue in Shreenath and another v. Rajesh and others reported in AIR 1998 SC 1827 , wherein, in Para Nos.10 and 11, it is held as follows :

“10.Under sub-clause 1 order 21, Rule 35, the Executing Court delivers actual physical possession of the disputed property to the decree-holder and, if necessary, by removing any person bound by the decree who refuses to vacate the said property. The significant words are by removing any person bound by he decree. Order 21, Rule 36 conceives of immovable property when in occupancy of a tenant or other person not bound by the decree, the Court delivers possession by fixing a copy of the warrant in some conspicuous place of the said property and proclaiming to the occupant by beat of drum or other customary mode at some convenient place, the substance of the decree in regard to the property. In other words, the decree-holder gets the symbolic possession. Order 21, rule 99 conceives of resistance or obstruction to the possession of immovable property when made in execution of a decree by " any person". this may be either by the person bound by the decree, claiming title through judgment debtor or claiming independent right of his own including tenant not party to the suit or even a stranger. A decree holder, in such case, may make an application to the Executing Court complaining such resistance, for delivery of possession of the property. Sub-clause (2) after 1976 substitution empowers the executing Courts when such claim is made to proceed to adjudicate upon the applicants claim in accordance with provisions contained hereinafter. This refers to