Sriram Housing Finance And … vs Omesh Misra Memorial Charitable … on 6 July, 2022


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Supreme Court of India

Sriram Housing Finance And … vs Omesh Misra Memorial Charitable … on 6 July, 2022

Author: Hon’Ble Ms. Banerjee

Bench: Hon’Ble Ms. Banerjee, J.K. Maheshwari

                                                                NON­REPORTABLE


                                 IN THE SUPREME COURT OF INDIA
                                  CIVIL APPELLATE JURISDICTION

                                 CIVIL APPEAL NO. 4649 OF 2022
                            [ARISING OUT OF SLP (C) NO.12833 OF 2014]

          SRIRAM HOUSING FINANCE AND INVESTMENT
          INDIA LTD.                            …APPELLANT

                                               VERSUS



          OMESH MISHRA MEMORIAL CHARITABLE
          TRUST                                                    ...RESPONDENT

                                           JUDGMENT

J.K. Maheshwari, J.

1. Leave granted.

2. This appeal is arising out of the judgment dated 16.04.2014

passed by High Court of Delhi in C.M. (M) No.493 of 2012,

preferred by appellant company herein under Article 227 of

Constitution of India, against the order dated 13.01.2012 passed

in Execution Petition No.46 of 2006, vide which, the Executing

Court entertained the objections filed by appellant company and
Signature Not Verified

Digitally signed by
Rachna
Date: 2022.07.06
16:48:33 IST
Reason:

1
proceeded to frame issues with a direction to the parties to lead

evidence on those issues.

3. The Execution Petition was filed by respondent trust,

alongwith legal heirs of late Shri N.D. Mishra for execution of

judgment and decree dated 01.02.2003 passed by Trial Court in

Civil Suit No. 278 of 2002. The suit was filed by late Shri N.D.

Mishra making prayer for a decree for: (i) possession of suit

property; (ii) sum of Rs.8000/­ on account of arrear of rent for

the month of May, 1994; (iii) sum of Rs.30,000/­ towards

damages/mesne profits/other charges for unauthorized use and

occupation by the defendant with effect from 01.06.1994 till the

date the defendant delivers back possession of suit property; (iv)

permanent injunction against the defendant restraining her from

using the suit property; and (v) mandatory injunction against the

defendant restraining her from obstructing the plaintiff in

enjoying the right of passage from main entrance on ground floor

to the terrace. The Trial Court decreed the suit in favour of

plaintiffs while restraining the defendant from obstructing the

plaintiff from enjoying the right of passage from the main

entrance on ground floor to the terrace and from raising further

construction. Further regarding damages and mesne profits, the
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Trial Court directed payment of Rs.30,000/­ per month with

effect from 01.06.1994 till the date of delivery of possession of

suit property by the defendant. Execution proceedings were

initiated by decree holders and being aggrieved, the appellant

company filed objections before Executing Court, which were

duly considered and decided by the Court vide order dated

13.01.2012. The said order was challenged by the respondent

trust before the High Court by filing the petition, which was

allowed vide order dated 16.04.2014 setting aside the order of the

Executing Court.

4. The facts briefly put are that, one late Shri N.D. Mishra

(now deceased) was the owner of the property in dispute i.e. Kothi

No.27, situated at Ishwar Nagar in New Delhi. The disputed

property was self­acquired by the deceased. Shri N.D. Mishra had

a family consisting his wife Smt. Raj Mishra (now deceased), two

sons namely Mr. Yogesh Mishra and Mr. Omesh Mishra (now

deceased) and three married daughters namely Smt. Dheera

Sharma, Smt. Neena Bharadwaj and Smt. Meena Sharma. In

memory of the deceased son, the respondent trust was

established in year 1992 by Smt. Raj Mishra in the name and

style of “Omesh Mishra Memorial Charitable Trust”.
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5. The history of instant litigation starts from the time when

late Shri N.D. Mishra in year 1986, lent a portion of the ground

floor of the suit property on lease to one Ms. Nisha Chauhan

(hereinafter referred to as ‘tenant’) for a period of two years at the

monthly lease rent of Rs. 7000/­. On expiry of the period, the

lease was terminated but the tenant failed to vacate the suit

property, whereafter, Shri N.D. Mishra filed Civil Suit No.181 of

1994 (i.e. suit for possession/recovery of arrears of

rent/damages/mesne profit and mandatory/permanent

injunction) against the tenant. During the pendency of suit, Shri

N.D. Mishra died on 27.05.1998. On 13.08.1998, by filing

application under Order XXII Rule 3 of Code of Civil Procedure,

1908 (hereinafter referred to as ‘CPC’), substitution was allowed

by Trial Court and Smt. Raj Mishra (wife), Mr. Yogesh Mishra

(son), Mrs. Dheera Sharma, Mrs. Neena Bharadwaj and Mrs.

Meena Sharma (daughters) were substituted as legal heirs. Later,

one Subhash Chander Sabharwal (the authorized trustee of

respondent trust herein) moved an application dated 02.08.1999

under Order I Rule 10 read with Section 151 of CPC before the

Trial Court and sought impleadment as plaintiff in Civil Suit

No.181/1994 on the anvil of ‘Will dated 29.08.1992’ executed by

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Shri N.D. Mishra in his lifetime, whereby, as stated in the

application, Shri N.D. Mishra in terms of aforesaid ‘Will’,

bequeathed the property in question in favour of the respondent

trust. It was at this time when the existence of the will dated

29.08.1992 executed by Shri N.D. Mishra was brought to the

notice of the Trial Court. Reply to the said application filed on

behalf of respondent trust seeking impleadment was sought by

Trial Court from the substituted legal heirs. Vide application

dated 03.12.1999, the plaintiff legal heirs filed their reply and

stated that they were not in knowledge of the said will executed

by Shri N.D. Mishra in favour of the Trust and admitted the

ownership of respondent trust over the property in question in

the following manner –

“4. ……..The legal heirs of Shri N.D. Mishra first time came to
know regarding the execution of Will of Shri N.D. Mishra
on 06.06.1998 when one of the legal heir Smt. Neena
Bharadwaj has attended the meeting of Omesh Mishra
Memorial Trust Pvt. Ltd. It is correct that Shri N.D.
Mishra on account of fact and by virtue of said
WILL, the property bearing Kothi No. 27, Ishwar
Nagar, New Delhi has been bequeathed in favour of
Omesh Mishra Memorial Charitable Trust……It is
further correct that said Trust shall be entitled to get the
aforesaid property transferred in its own name and trust
is also competent to dispose­off the said property……It is
further correct that by virtue of said Will, Omesh
Mishra Memorial Charitable Trust/applicant has

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become the owner of the suit property and entitled
to substitute as plaintiff/co­plaintiffs in the present
suit….”

It is worthwhile here to mention that the none of the legal heirs

dispute the validity/genuineness of the will and admitted the

existence of same. Thereafter, vide order dated 30.11.2000, the

Trial Court allowed the application for impleadment and

respondent trust became the co­plaintiff in Civil Suit

No.181/1994 alongwith plaintiffs legal heirs.

6. Eventually, vide judgment and decree dated 01.02.2003, 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. The relevant portion of the said judgment and

decree is reproduced below for ready reference –

“In view of my finding on the foregoing issues, the decree for
possession in respect of the suit premises i.e. house bearing
no.27, Ishwar Nagar, Main Mathura Road, New Delhi – 110025
as shown in red in Ex. PW1/3 as well as decree for possession
in respect of portion shown in yellow in site plan Ex. PW 1/3 is
passed in favour of the plaintiff and against the
defendant. Further, decree of mandatory injunction is passed in
favour of plaintiff thereby restraining the defendant from
obstructing the plaintiff from joying the right of passage from the
main entrance on the ground floor to the terrace and from raising
further construction. The suit of plaintiff is also been decreed in
respect of the relief of mesne profits/damages and decree for

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damages/mesne profits @ Rs.30,000/­ per month passed in
favour of the plaintiff and against the defendants w.e.f.
01.06.1994 till date the defendant delivers back the possession
of the suit premises…..”

Originally, in the judgment and decree dated 01.02.2003, the

name of the respondent trust herein was not incorporated,

whereafter, vide order dated 16.10.2004, the correction with

respect to name of parties was carried out by Trial Court and

name of respondent trust was included as one of the decree

holders. Henceforth, for the purpose of judgment and decree

dated 01.02.2003, the legal heirs of Shri N.D. Mishra alongwith

respondent trust herein became the decree holders, whereas the

obligations of the judgment debtor vested with the tenant for

execution. Pursuant thereto, vide possession letter dated

22.12.2003, the tenant handed over the vacant and physical

possession of the suit property to one Shri S.R. Pandey who was

acting as power of attorney holder and authorized agent of Mr.

Yogesh Mishra.

7. On the said factual premise, Execution Petition No.13/2004

was filed by decree holders seeking enforcement of judgment and

decree dated 01.02.2003 against the tenant. It was at this time

when the dispute arose, once it came to the notice of the

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respondent trust that based on mutation entry in revenue

records in his favour, Mr. Yogesh Mishra had transferred the suit

property to the appellant company vide sale deed dated

12.04.2004. The appellant company while acting as the agent of

Mr. Yogesh Mishra even took the possession of the suit property

directly from tenant i.e., the judgment debtor on 22.12.2003. On

the perusal of the possession letter, it was found that the

appellant company termed itself as bona­fide agent/power of

attorney holder of Mr. Yogesh Mishra.

8. Subsequently, the appellant company filed an application

dated 23.09.2004 under Order XXI Rule 58 of CPC in the

execution proceedings and prayed for dismissal of execution

petition on the ground that vide registered sale deed dated

12.04.2004, appellant company became owner of the suit

property. Vide order dated 27.11.2004, the Executing Court

dismissed the aforesaid application filed by appellant company as

non­maintainable on the ground that respondent trust was

impleaded as co­plaintiff in the main suit based on ‘Will dated

29.08.1992’ which was never disputed/objected by legal heirs of

late Shri N.D. Mishra. The relevant portion of order reads as

under –
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“(A) ……I have given my thoughtful consideration to the rival
contention of the parties. It is clear from the record that
vide order dated 30.11.2000, Omesh Mishra Memorial
Charitable Trust was impleaded as co­plaintiff in the main
suit as there was a WILL in favour of Trust dated
29.08.1992 and this WILL was not objected by the
LR’s of late Shri N.D. Mishra. Considering all these
facts a decree has been passed in favour of DH, thus,
applicant have got no right to stay in the property and is
liable to handover the vacant and peaceful possession to
the DH. It is also clear that judgment/decree for
possession has been passed in favour of the trust and
thus Sh. Yogesh Mishra has/had got no right to transfer
the title/possession of the suit property to anyone. Decree
dated 01.02.2003 passed in favour of the Omesh Mishra
Memorial Charitable Trust. LR’s of Sh. N.D. Mishra has not
been challenged by the JD or anyone else, thus, the same
has become final…..”

Review against such dismissal was also preferred by appellant

company, though the same came to be dismissed by Executing

Court vide order dated 24.12.2004.

9. Thereafter, appellant company preferred Civil Revision

No.34/2005 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 vide order

dated 27.11.2008 with the observation that since the appellant

company was a ‘purchaser pendente lite’, it could not have

instituted the objections and the only remedy available to it was

to file a separate suit to get the dispute adjudicated regarding

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title and ownership of suit property. The order passed in Civil

Revision was impugned by the appellant company before this

Court in Special Leave Petition (C) No.31457 of 2008, which also

came to be dismissed vide order dated 12.01.2009, with an

observation that “since the High Court has permitted filing of a

suit, it goes without saying that observation made in present

proceedings will not be determinative issue if the suit is filed.”

Following the dismissal of Special Leave Petition with aforesaid

observation, the appellant company filed separate suit bearing

no. CS (OS) No.434/2009 before High Court for ‘declaration and

permanent injunction’ against the respondent trust and legal

heirs of Shri N.D. Mishra. Written statement and objections were

taken on record and after hearing both the parties, the said suit

vide order dated 22.12.2010 was ‘dismissed as withdrawn’ by

High Court with liberty as under–

“5. Since the learned Senior Counsel for the plaintiff has
sought permission to withdraw the suit with liberty to file
objections, the same is allowed subject to all objections
being raised by defendants herein as may be permissible
under law.

6. The suit is accordingly dismissed as withdrawn with
liberty as prayed for.”

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10. In view of the liberty granted by High Court vide order dated

22.12.2010, the appellant company on 03.01.2011 filed its

objections under Order XXI Rules 97 to 101 CPC in Execution

Petition No.46/2006 (i.e., the same proceedings previously

numbered as Execution Petition No.13/2004) and reiterated the

same objections as raised by it under Order XXI Rule 58 in the

previous round of litigation. The respondent trust filed objections

and challenged the maintainability of the application. Vide order

dated 13.01.2012, the Executing Court while dealing with the

objections framed the issues and directed the parties to lead their

evidence. Being aggrieved, the respondent trust preferred CM(M)

No.493/2012 and C.M. No.7470/2012 before High Court and

assailed the order dated 13.01.2012 passed by Executing Court

in Execution Petition No.46/2006. The High Court vide order

dated 16.04.2014 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

11
this Court against the appellant company in previous

proceedings with the observation that the only remedy left with

appellant company is to file an ‘independent/separate suit’ to

decide the dispute with respect to title/ownership of the suit

property, the objections filed by appellant company again at the

stage of execution proceedings were not maintainable. The High

Court further observed that, if the objections were to be held

maintainable, it would amount to a fresh trial and hence, the

decree holder may not be able to get the fruits of the decree for

the next couple of decades while the illegal possession obtained

by appellant company with respect to suit property shall remain

with it.

11. The appellant company has assailed the impugned

judgment inter­alia on the following grounds –

a) The appellant company is a bona­fide purchaser of the suit

property as it was purchased from Mr. Yogesh Mishra (son of

Shri N.D. Mishra) vide registered sale deed dated 12.04.2004;

b) Mr. Yogesh Mishra was the sole and absolute owner of the

suit property by virtue of ‘Will dated 23.05.1998’ and same

was sold to appellant company by Mr. Yogesh Mishra being a

12
decree holder after the decree was passed. Therefore, the

appellant company is legally entitled to raise objections

under Order XXI Rule 97 to 101 of CPC;

c) High Court erred in interpreting Order XXI Rule 102 of CPC

as it is only applicable when judgment debtor has transferred

the property after the institution of suit, whereas, in the

instant case, the suit property was sold by decree holder;

d) It is well settled that the Executing Court has discretion to

frame issues and to conduct a trial in the matter while

adjudicating the objections filed under Order XXI Rule 97 to

101 of CPC.

e) Reliance is placed on following case laws to substantiate the

grounds as raised above –

i. Silverline Forum Pvt. Ltd. Vs. Rajiv Trust and Another,
(1998) 3 SCC 723.

ii. Vateena Begum Vs. Shamim Zafar & Anr., (2020) SCC
OnLine Del 1617.

12. Per contra, the counsel for the respondent trust supported

the impugned judgment passed by High Court and contended as

follows –

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a. 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 Indian Evidence Act;

b. The Executing Court has gone into the claim or objection

preferred by appellant company and once finality has been

bestowed upon adjudication made under Order XXI and Rule

58, it can only be supplanted by another decree in Civil Suit.

Therefore, having already invoked Order XXI Rule 58 of CPC,

the appellant cannot invoke proceedings under Order XXI

Rule 97 to 101 of CPC under doctrine of election;

c. The appellant company cannot invoke proceedings under

Order XXI Rule 97 as only the ‘decree­holder’ or an ‘auction

purchaser’ is entitled to make an application thereto. The

appellant company does not fall under both the categories.

Further, 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. In

the instant case, the appellant company is very much in

possession of suit property;

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d. The judicial records sufficiently show that Mr. Yogesh Mishra

had no title over the suit property which he could have

transferred to appellant company;

e. ‘Will dated 29.08.1992’ stands proved in Court in Civil Suit

No.181 of 1994 and hence, the said Will cannot be disputed

merely by oral evidence;

13. Heard the rival contentions of learned counsel for both

parties and perused the material available on record. Before

adverting to the rival contentions raised by both the parties, it is

apt to reproduce the Order XXI alongwith Rules 97 to 102 for

ready reference –

“Order XXI – Execution of decrees and orders

97. Resistance or obstruction to possession of immovable
property –
(1) Where the holder of a decree for the possession of
immovable property or the purchaser of any such property
sold in execution of a decree is resisted or obstructed by
any person obtaining possession of the property, he may
make an application to the Court complaining of such
resistance or obstruction.

(2) [Where any application is made under sub­rule (1), the
Court shall proceed to adjudicate upon the application in
accordance with the provisions herein contained.]

98. Orders after adjudication –
(1) Upon the determination of questions referred to in rule
101, the Court shall, in accordance with such

15
determination and subject to the provisions of sub­rule (2),
­
a. make an order allowing the application and
directing that the applicant be put into the
possession of the property or dismissing the
application; or
b. pass such other order as, in the circumstances of the
case, it may deem fit.

(2) Where, upon such determination, the Court is satisfied
that the resistance or obstruction was occasioned without
any just cause by the judgment­debtor or by some other
person at his instigation or on his behalf, or by any
transferee, where such transfer was made during the
pendency of the suit or execution proceeding, it shall direct
that the applicant be put into possession of the property,
and where the applicant is still resisted or obstructed in
obtaining possession, the Court may also, at the instance
of the applicant, order the judgment­debtor, or any person
acting at his instigation or on his behalf, to be detained in
the civil prison for a term which may extend to thirty days.

99. Dispossession by decree­holder or purchaser –
(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.

100. Order to be passed upon application complaining of
dispossession –
Upon the determination of questions referred to in rule
101, the Court shall, in accordance with such
determination, –

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a. make an order allowing the application and
directing that the applicant be put into the
possession of the property or dismissing the
application; or
b. pass such other order as, in the circumstances of the
case, it may deem fit.

101. Question to be determined –
All questions (including questions relating to right, title or
interest in the property) arising between the parties to a
proceeding on an application under rule 97 or rule 99 or
their representatives, and relevant to the adjudication of
the application, shall be determined by the Court dealing
with the application, and not by a separate suit and for
this purpose, the Court shall, notwithstanding anything to
the contrary contained in any other law for the time being
in force, be deemed to have jurisdiction to decide such
questions.

102. Rules not applicable to transferee pendente lite –
Nothing in rules 98 and 100 shall apply to resistance or
obstruction in execution of a decree for the possession of
immovable property by a person to whom the judgment­
debtor has transferred the property after the institution of
the suit in which the decree was passed or to the
dispossession of any such person.

Explanation – In this rule, “transfer” includes a transfer by
operation of law.

14. From bare reading of the aforesaid provisions, it is clear that

Order XXI Rule 97 deals with the resistance or obstruction to

possession of immovable property by ‘any person’ obtaining

possession of the property against the decree holder. It empowers

the ‘decree holder’ to make an application complaining about

17
such resistance or obstruction. On the other hand, Rule 99 of

Order XXI deals with the right of ‘any person’ other than the

judgment debtor who is dispossessed by holder of a decree for

possession of such property or in case where such property is

sold in furtherance of execution of a decree. The said provision

vests ‘any person’ with a right to make an application

complaining about such dispossession of immovable property in

the manner prescribed above. Rule 98 and Rule 100 deal with the

power of the Court to pass appropriate orders upon an

application preferred under Rule 97 and Rule 99 respectively. In

so far as Rule 101 is concerned, it confers jurisdiction on the

Court as well as casts an obligation to determine the questions

relating to right, title or interest in the property, if any, arising

between parties on an application made by the concerned person

under Rule 97 or Rule 99 in the same proceedings for

adjudication and not in a separate suit. Lastly, Rule 102 clarifies

that Rule 98 and Rule 100 shall not apply in a case where

resistance or obstruction in execution of a decree for the

possession of immovable property is offered by ‘transferee

pendente­lite’ i.e., the person to whom the property is transferred

18
by the judgment debtor after institution of the suit in which the

decree sought to be executed was passed.

15. 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’. As available from the

material placed on record, it is the respondent trust alongwith

legal heirs of late N.D. Mishra who are the decree holders and not

the appellant. Therefore, it is obvious that appellant cannot take

shelter of Rule 97 as stated above to raise objections against

execution of decree passed in favour of respondent. Further, Rule

99 pertains to making a complaint to the Court against

‘dispossession’ of the immovable property by the person in

‘possession’ of the property by the holder of a decree or purchaser

thereof. It is factually not in dispute that appellant purchased the

said property from Mr. Yogesh Mishra vide sale deed dated

12.04.2004 and has been in vacant and physical possession of

the property since then. Had it been the case that the appellant

was dispossessed by the respondent trust in execution of decree
19
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. On the contrary, 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.

16. Now, as stated above, applications under Rule 97 and Rule

99 are subject to Rule 101 which provides for determination of

questions relating to disputes as to right, title or interest in the

property arising between the parties to the proceedings or their

representatives on an application made under Rule 97 or Rule

99. Effectively, the said Rule does away with the requirement of

filing of fresh suit for adjudication of disputes as mentioned

above. Now, in the present case, Order XXI Rule 101 has no

applicability as the appellant is neither entitled to make an

application under Rule 97 nor Rule 99 for the reasons stated

above. Accordingly, we find no substance in the argument raised
20
by learned counsel for the appellant. 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.

17. Resultantly, this appeal is dismissed with a direction to the

Executing Court to decide the execution case as expeditiously as

possible not later than six months.

………..…………………J.

(INDIRA BANERJEE)

.….………………………J.

(J.K. MAHESHWARI)

New Delhi;

July 06, 2022

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