21

RULE

97

OF

CPC

AND ETC.

THIS APPEAL COMING ON FOR ADMISSION THIS DAY,

S.R.KRISHNA KUMAR J. DELIVERED THE FOLLOWING:

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JUDGMENT

This appeal is directed against the impugned order

dated 04.01.2022 passed in Com.Ex.No.863/2016 whereby,

the application filed by the appellant under Order 21 Rule

97 of Code of Civil Procedure (for short ‘CPC’) seeking stay

of further proceedings in the execution petition pending

disposal of the application under Order 21 Rule 97 of CPC

was rejected by the Commercial Court.

2.

Heard learned counsel for the appellant and

perused the material on record.

3.

In addition to reiterating various contentions

urged in the appeal and referring to the material on record,

learned counsel for the appellant submits that the appellant

has acquired right, title, interest and possession over the

schedule property under the registered gift deed dated

25.02.2002 executed by her husband Sri.G.Srinivasa

Athrey in her favour, pursuant to which she has become the

absolute owner in lawful and peaceful possession and

enjoyment of the schedule property. It is submitted that

the appellant has independent right, title, interest and

possession over the schedule property and the liability of

M/s. Mathur Polymers

Private Limited which

is an

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independent juristic and legal entity cannot be fastened

either upon her husband Sri.G.Srinivasa Athrey or the

appellant herein and consequently, the application filed by

the appellant under Order 21 Rule 97 of CPC seeking stay

of further proceedings pending disposal of the application

under Order 21 Rule 97 of CPC was incorrectly rejected by

the

Commercial

Court.

It

is

also

submitted

that

notwithstanding dismissal of the earlier application under

Order 21 Rule 58 CPC filed by the appellant, the said order

will not come in the way of the appellant protecting her

right, title, interest and possession over the schedule

property.

4.

Though the aforesaid contentions have been

urged by the learned counsel for the appellant, the material

on record discloses that the execution proceedings have

been

initiated

by

respondent

No.1-Karnataka

State

Financial Corporation, in which it has sought for attachment

and sale of movable/immovable property of the Judgment

Debtors. There is no gainsaying the fact that in order to

invoke Order 21 Rule 97 CPC, there has to be a decree for

possession of immovable property and the prayer in the

execution proceedings seeking to enforce the said decree

for recovery of possession of the immovable property.

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5.

In the instant case, the records relating to the

execution proceedings clearly indicate that there is no

decree/order for possession of the schedule property and

consequently, the application under Order 21 Rule 97 of

CPC

filed

by

the

appellant

claiming

to

be

an

objector/obstructor would not be maintainable.

6.

Under these circumstances, we do not find any

merit in the appeal and the same is hereby dismissed.

7.

The pending interlocutory application stands

disposed of.

Sd/-

CHIEF JUSTICE

Sd/-

JUDGE

VM