Person Never Dispossessed From Property Cannot Make Application Under Order XXI Rule 99 CPC Objecting To Execution Proceedings- SC

The Supreme Court in the case- Sriram Housing Finance and Investment India Ltd. vs Omesh Mishra Memorial Charitable Trust, observed that a person who was never dispossessed from the property cannot be entitled under Order XXI Rule 99 of the Code of Civil Procedure to make an application seeking appropriate relief to be put back in possession.

Rule 99 provides that- (1) Where any person other than the judgment debtor is dispossessed of immovable property by the holder of a decree for the possession of such property or, where such property has been sold in execution of a decree, by the purchaser thereof, he may make an application to the Court complaining of such dispossession. (2) Where any such application is made, the Court shall proceed to adjudicate upon the application in accordance with the provisions herein contained.

The Court also held, "The appellant in the instant case was never dispossessed from the property in question and till date, as contended and unrefuted, the possession of same rests with the appellant. Considering the aforesaid, the appellant cannot be said to be entitled to make an application under Rule 99 raising objections in execution proceedings since he has never been dispossessed as required under Rule 99."

The Bench of Justice Indira Banerjee and Justice J.K. Maheshwari was dealing with an appeal from one -Sriram Housing Finance and Investment India Ltd.

In this case one late N.D. Mishra had lent a portion of the ground floor of the suit property on lease to a tenant for a period of two years. After the expiry of the said period, the lease was terminated but the tenant failed to vacate the suit property.

Following this, N.D. Mishra filed a suit against the tenant. During the pendency of the suit N.D. Mishra died. The Trial Court allowed substitution filed by his legal heirs. Later one Subhash Chander Sabharwal (the authorized trustee of a respondent trust) moved an application before the Trial Court and sought impleadment as a plaintiff in Civil Suit. N.D. Mishra in terms of the 'Will', had bequeathed the property in question in favor of the respondent trust.

None of the legal heirs dispute the validity/genuineness of the will and admitted the existence of same. The Trial Court allowed the application for impleadment and respondent trust became the co­plaintiff.

Eventually, the 'decree for possession' in respect of suit premises, 'mandatory injunction' as well as 'mesne profits/damages' were passed in favour of plaintiffs i.e. the legal heirs and against the defendant i.e. the tenant.

Then the decree holders filed execution petition seeking enforcement of judgment and decree against the tenant. At this time it came to the notice of the respondent trust that based on mutation entry in revenue records in his favour, Yogesh Mishra (son of N.D. Mishra) had transferred the suit property to a company- Sriram Housing Finance and Investment India Ltd. who had taken the possession of the suit property directly from tenant.

Subsequently, the company filed an application praying for dismissal of execution petition on the ground that it had became owner of the suit property.

However the executing court dismissed the aforesaid application. Review against such dismissal was also preferred by appellant company, though the same came to be dismissed by Executing Court.

Thereafter, appellant company preferred Civil Revision challenging the aforesaid order of rejection of application alongwith the order passed in Review. The said Revision also came to be dismissed by High Court.

The order passed in Civil Revision was impugned by the appellant company before Supreme Court, which also came to be dismissed.

The appellant company filed its objections under Order XXI Rules 97 to 101 CPC. The respondent trust filed objections and challenged the maintainability of the application.

The Executing Court while dealing with the objections framed the issues and directed the parties to lead their evidence. Aggrieved the respondent trust approached High Court and the High Court allowed the petition and set aside the order passed by Executing Court primarily on the ground that the Executing Court at the stage of execution proceedings framed the issues to lead parties to evidence without keeping in mind that once the objections under Order XXI Rule 58 of CPC filed by the appellant company against the execution of the decree, were already decided by the Executing Court, High Court as well as Supreme Court.

The appellant company moved Supreme Court and contended that it was the bona­fide purchaser of the suit property as it was purchased from Yogesh Mishra (son of Shri N.D. Mishra). It further argued that it was legally entitled to raise objections under Order XXI Rule 97 to 101 of CPC.

On the other hand, the counsel for the respondent trust argued that appellant company cannot invoke proceedings under Order XXI Rule 97 as only the 'decree­holder' or an 'auction purchaser' was entitled to make an application thereto. It was also contended that for purpose of Rule 99, the applicant has to make a statement that he/she has been 'dispossessed of immoveable property' by either the decree­holder or auction purchaser.

The Court at the outset considered Order XXI alongwith Rules 97 to 102.

The Court observed that "On conjoint reading of the aforesaid provisions, it can be observed that under Rule 97, 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'. In the present case, as admitted by the appellant itself, it is a bona­fide purchaser of the property and not the 'decree holder'."

The Court held that the appellant cannot take shelter of Rule 97 as stated above to raise objections against execution of decree passed in favour of respondent.

On application of Rule 99 the Court observed "Had it been the case that the appellant was dispossessed by the respondent trust in execution of decree dated 02.09.2003, the appellant would have been well within the ambit of Rule 99 to make an application seeking appropriate relief to be put back in possession."

The Court noted that the appellant was never dispossessed from the property hence the appellant cannot be said to be entitled to make an application under Rule 99.

The Court also noted that in the present case, Order XXI Rule 101 had no applicability as the appellant was not entitled to make an application under Rule 97 or Rule 99.

"In such circumstances, Executing Court had no occasion to frame issues and give direction to parties to lead evidence on objections raised by appellant. By doing so, the Executing Court transgressed the scope of Order XXI Rule 97 and Rule 99. 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", the Court held while upholding High Court's order.

Click here to read/download the Judgment