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The Supreme Court has held that held that under Rule 97 CPC, it is only the ‘decree holder’ who is entitled to make an application in case where he is offered resistance or obstruction by ‘any person’.
A division judge bench of Justice Indira Banerjee and Justice J.K Maheshwari was dealing with an appeal in the case of Sriram Housing Finance and investment India Ltd Vs Omesh Mishra Memorial Charitable Trust.
Brief Facts of the Case
The factual matrix of the case that the owner of the property in question was a man named Late Shri N.D. Mishra, who is now deceased. The deceased self-acquired the disputed property. Three married daughters, two sons, and his wife made up Shri N.D. Mishra's household. The responsive trust was created in 1992 by the N.D Sharma’s wife in his honour under the name and style "Omesh Mishra Memorial Charitable Trust."
The current legal dispute dates back to 1986, when the late Shri N.D. Mishra leased a portion of the suit property's ground floor to a woman tenant for a period of two years at a monthly lease rent of Rs. 7000/. The lease was terminated at the end of the term, but the tenant did not leave the suit property. As a result, Shri N.D. Mishra filed Civil Suit for possession, recovery of rent arrears, damages, and mesne profit, as well as a mandatory/permanent injunction against the tenant.
The learned counsel for the appellant contended that the appellant company is the bona-fide purchaser of the suit property as it was purchased from Mr Yogesh Mishra. Therefore, the appellant company is legally entitled to raise objections under order XXI Rule 97 to 101 CPC. They further contended that the high court erred in interpreting order XXI rule 102 CPC.
It was also settled that executing court has discretion to frame issues and to conduct a trial in a manner while adjudicating the objections filed under order XXI Rule 97 to 101 CPC.
The Counsel for the appellant supports his argument by relying on the judgements titled, ‘Silverline Forum Pvt Ltd Vs Rajiv Trust and Ors’ and ‘Vateena Begum Vs Shamim Zafar & Anr.’
The learned counsel for the respondent contended that the appellant company is claiming the suit property on the anvil of will dated 23.05.1998 which has not been proved in any court of law by leading primary evidence in terms of Section 64 of the Indian Evidence Act. It was further contended that the appellant cannot invoke proceedings under order XXI Rule 97 to 101 of CPC under doctrine of election. If they have already invoked order XXI Rule 58 of CPC.
He averred that judicial records sufficiently show that the appellant had no title over the suit property which he could have transferred to appellant company.
Supreme Court's Observation
The Apex Court held that Order XXI Rule 101 is not applicable in this situation since the appellant is not qualified to submit a request under either Rule 97 or Rule 99. As a result, we don't think the argument advanced by the appellant's knowledgeable counsel has any merit. In these circumstances, the Executing Court had no need to articulate the issues or direct the parties to present evidence in response to the appellant's concerns. The Executing Court went against the letter and spirit of Order XXI Rules 97 and 99 by doing this. Therefore, in our opinion, the High Court was correct to overturn the Trial Court's decision to hear the appellant's objections under Order XXI Rules 97 to 102.
CASE NAME: Sriram Housing Finance and investment India Ltd Vs Omesh Mishra memorial Charitable Trust
CASE TITLE: CIVIL APPEAL NO. 4649 OF 2022
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