Institute of Legal and Management Studies

The Supreme Court recently issued a notice in a plea highlighting the judicial inconsistency between two decisions concerning the interpretation of Order XXI Rule 97 CPC, which deals with resistance or obstruction to the execution of a decree.

At the outset, the Court highlighted a conflict between two of its prior rulings. In Brahmdeo Choudhary v. Rishikesh Prasad Jaiswal (1997) 3 SCC 694, the Court had held that any person facing dispossession, not just decree-holders or auction purchasers, could seek relief under Order XXI Rule 97 CPC. However, in Sriram Housing Finance v. Omesh Misra Memorial Charitable Trust 2022 LiveLaw (SC) 565, the Court had taken a more literal approach, limiting the provision's applicability strictly to decree-holders or auction purchasers.

The bench of Justice Dipankar Datta and Justice Prasanna B. Varale heard a plea challenging the Madras High Court's decision, which had affirmed the trial court's dismissal of the petitioner's execution application filed under Order XXI Rule 97 of the Civil Procedure Code (CPC).

The case stemmed from execution proceedings to recover embezzled funds from Appellant's husband, a former bank employee. The appellant claimed the auctioned property was her self-acquired asset and sought to set aside the sale under Order XXI Rules 97, 98, and 26(2) of the Civil Procedure Code (CPC), alleging procedural irregularities.

The Courts below, relying on the case of Sriram Housing Finance, held that, as a third party, the petitioner was not entitled to invoke execution provisions intended solely for decree-holders or judgment-debtors.

The petitioner relied on the case of Brahmdeo Choudhary v. Rishikesh Prasad Jaiswal, to assail the correctness of the impugned decisions, which had expanded the scope of Order XXI Rule 97 to even permit a third party to seek relief against dispossession.

Upon noting that an arguable case has been set up due to the conflict in precedents, the Court was inclined to issue a notice to the respondents.

Since the petitioner is still in possession of the decretal property, the court ordered that her possession shall not be disturbed without the leave of the Court.

The matter is listed next in August 2025.

Appearance : A. Hariprasad, Sr. Adv and Swathi H. Prasad, AOR for the appellant; M. S. Vishnu Sankar, Adv for the respondent.

Case Title: P. SUMATHI VERSUS K. KRISHNA GOUNDER & ORS.

Click here to read/download the order