Shashwati Chowdhury
Published on: July 7, 2022 at 16:54 IST
The Supreme Court noted that purchaser of the suit property from the decree holder cannot file an application under Order XXI Rule 97 of Code of Civil Procedure Code, 1908 objecting execution of the decree by the decree holder.
The Trial Court in this case issued an order restraining the defendant from impeding the plaintiff from enjoying the right of passage from the main entrance on the ground floor to the terrace and from raising any further building, lawsuit was filed by the late Shri N.D. Mishra. As N.D. Mishra passed away while the lawsuit was pending, his legal heirs and a trust became the decree holders after the Trial Court approved the application for impleadment.
The Plaintiffs/Decree holders filed Execution petition seeking enforcement of the decree against tenants. They then discovered that a company named Shriram Housing Finance and Investment India Ltd had taken possession of the suit property directly from the tenant while claiming to be a bonafide purchaser of the suit property from Mr. Yogesh Mishra (son of Shri N.D. Mishra).
The company alleging resistance by the Plaintiffs to possession of the Suit Property filed its objections under Order XXI Rules 97 to 101 CPC in Execution Petition. The decree holders challenged the application’s maintainability.
The appellant Company argued that the application under Rule 97 is maintainable because it is a bona fide purchaser of the property under suit. The respondents Decree holders would argue that the appellant corporation does not fall under both categories, and that only the decree holder or an auction purchaser is entitled to submit an application.
Justices JK Maheshwari and Indira Banerjee’s Bench made the following observation:
In the current instance, appellant is the bona fide purchaser of the property rather than the decree holder. According to the information placed before, the respondent trust and along with legal heirs Mishra—not the appellant—are the ones who are the decree holders. Therefore, the appellant cannot use Rule 97 as a shelter to make objections to the execution of the decree made in favour of the respondent
The Bench said “Therefore, in our considered view, the High Court has rightly set aside the order of Trial Court entertaining the objections filed by appellant Under Order XXI Rule 97 to Rule 102”.
