SUPREME COURT OF INDIA

Before:- A.P. Misra and R.P. Sethi, JJ.

Civil Appeal No. 2151 of 2000 (Arising out of S.L.P. (C) No. 3702 of 1999). D/d. 16.3.2000.

Prasantha Banerji - Petitioner

Versus

Pushpa Ashoke Chandani - Respondents

Civil Procedure Code, 1908, Order 21, Rule 97 - Whether suit filed by appellant who is not party to a decree is maintainable when execution proceeding in respect of same property has been initiated under Order 21, Rule 97 - Held suit filed after initiation of execution proceedings not maintainable - However, appellant is entitled to raise any his right in execution proceedings. AIR 1998 Supreme Court 1827 relied.

[Para 3]

Cases Referred :-

Shreenath v. Rajesh, 1998(1) RCR (Rent) 454 (SC) : 1998(4) SCC 543 .

JUDGMENT

A.P. Misra, J. - Substitution allowed.

2. Leave granted.

3. The present appeal is directed against the judgment and order dated 11.2.1999 passed by the High Court of Calcutta. The only point raised in this appeal is whether the suit filed by the appellant who is not party to a decree is maintainable, when execution proceeding in respect of the same property has been initiated under Order 21, Rule 97 of the Civil Procedure Code or his remedy is going in the said execution proceedings. The High Court came to the conclusion that the suit having been filed after initiation of execution proceedings, the same is not maintainable hence dismissed the second appeal. The High Court further held that the appellant is entitled to raise all such lawful subtenancy or any of his right in the execution proceedings, under Order 21, Rule 97 of the Code. The question raised in this appeal is squarely covered by the decision of this Court in Shreenath v. Rajesh, 1998(1) RCR (Rent) 454 (SC) : 1998(4) SCC 543 , as against the appellant. Accordingly, the present appeal fails and is accordingly dismissed and the impugned order of the High Court is upheld. Cost on the parties.

Appeal dismissed.