1 lgc IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO.327 OF 2008 WITH CIVIL APPLICATION NO.769 OF 2008 Savita Shankar Jadhav : Appellant. Versus Smt.Shantabai Shripat Gotkal & ors. : Respondents. Mr.Tushar Sonawane for the Appellant. Ms.Jai Mhaskar for Respondent No.1. CORAM : C.L.PANGARKAR, J. DATE : 02nd February 2010 P.C. 1. This second appeal has been preferred by objector Savita Jadhav. Appellant’s father had entered into contract of sale of suit property with Respondents. Father Shankar died. The Respondents instituted a suit for specific performance of contract against the appellant, her sister and mother. The said suit was contested by them. The said suit was decreed by the Court. A decree for specific performance was passed in favour of the Respondents. The appellants preferred an appeal before the District Court. Having lost there, they preferred an appeal before the High Court. The High Court was also pleased to reject the appeal. Thereafter the present appellant Savita Jadhav instituted a suit for declaration that her father did not have right to alienate the 2 property. That suit came to be dismissed by the Court. Thereafter the decree was put to execution. Now the appellant had filed an application before the Executing Court purporting to be an application under Order 21 Rule 97 of the Code of Civil Procedure. The learned Judge of the trial Court after having considered the contentions found that the application was not maintainable,because the earlier suit was dismissed and also because the application could not be filed by an objector under Order 21 Rule 97 of the Code of Civil Procedure, but it has to be filed by a decree holder. The appeal preferred by the present appellant before the District Court also came to be dismissed. 2. The learned counsel for the Appellant submits before me that the Courts below have rejected the application on the ground that such an application at the instance of objector is not contemplated and such an application could be filed only by decree holder. There is no doubt an application at the instance of objector under Order 21 Rule 97 of the Code of Civil Procedure is maintainable. However, I find that by filing of such an application, the present appellant is certainly misusing the process of law. In fact, the appellant had filed civil suit claiming that her father did not have right to alienate the suit property. That suit came to be dismissed. 3 3. The right of the objector with regard to the suit property was negatived by the courts below while deciding the suit and the decree as was passed was correct and the contention of the objector that her father did not have right to alienate the property was not correct. 4. Similar is the objection which is raised in the application under Order 21 Rule 97 of the Code of Civil Procedure and once having decided the question that she had no right to challenge the alienation made by her father, the said decision definitely operates as res-judicata. That is also clear from the provisions of Order 21 Rule 104 of the Code of Civil Procedure. Further decree was passed against the appellant herself. She is a person bound by decree and can not be an objector. Objection contemplated is by a third party, not bound by decree. Decree having been passed against the appellant herself an appreciation at her instance is not maintainable. In view of this, there is no substantial question of law involved in this Appeal. The same is dismissed in limini. In view of dismissal of the second appeal, the civil application does not survive, it stands disposed of. [C.L.PANGARKAR, J]