Case at a Glance
A tenant firm evicted under the M.P. Accommodation Control Act, 1961 lost possession through execution less than a month after filing its appeal, and sought restoration on the ground that no prior notice was issued under Order 21 Rule 22 CPC. A coordinate bench had earlier held that such notice may be required where possession of residential or livelihood premises is taken before the appeal period lapses. Justice Vinay Saraf found that, on the text of Order 21 Rule 22 and the M.P. amendment, there is no legal requirement of prior notice when execution is filed within two years of the decree, and that omission invalidates the order only if the judgment debtor suffers substantial injury. Bound by judicial discipline, he referred the question to a larger bench and ordered status quo.
By decree dated 15 May 2025 in RCS No. 488A/2020, the 16th District Judge, Indore, ordered eviction of the appellant under Sections 12(1)(a) and 12(1)(f) of the M.P. Accommodation Control Act, 1961, with arrears and mesne profits; the landlord puts the arrears at Rs 44,55,000. The appellant filed a first appeal on 11 July 2025 with a stay application. On 5 August 2025, possession was handed over through a process server; the appellant says this was done without any notice under Order 21 Rule 22 CPC.
Interim status quo orders followed. On 11 December 2025, the High Court disposed of the stay and related applications, relegating the parties to the Executing Court, and on 22 January 2026 it dismissed a temporary injunction application. The appellant then filed I.A. No. 9502 of 2026 seeking restoration of possession during the appeal. The landlord objected that the application was barred by res judicata.
The Key Question Before the Court
Where execution of a decree for possession or eviction is filed within two years of the decree, is it mandatory to issue notice to the judgment debtor under Order 21 Rule 22 CPC (as amended in Madhya Pradesh) before a warrant of possession is issued?
Plain Text Versus a Coordinate Bench Ruling
On res judicata, the Court held the objection unsustainable, because “the issue of stay of execution of impugned decree, restoration of possession have not been finally decided” by the earlier orders. On the main question, it considered the coordinate bench decision in Dr. Subhash Chandra Jain v. Shri Digambar Jain Mahila Trust (Second Appeal No. 1824/2025, decided 29 July 2025), which held that notice may be required where execution is filed before the appeal period ends and possession of residential or livelihood premises is taken.
Reading Order 21 Rule 22(1) and (2), the Court concluded that, for execution filed within two years of the decree, “there is no requirement in law to issue prior notice to the judgment debtor.” It pointed to the M.P. amendment’s proviso, under which an order is invalid for omission of notice only where the judgment debtor “has sustained substantial injury by reason of such omission”, and noted that Jain did not consider this amendment. It added that there is “no separate legal provision for execution of possession and eviction decrees.” Since a bench of equal strength cannot ignore or contradict a coordinate decision, the Court referred the question to a larger bench.
What the Court Actually Held
- The landlord’s res judicata objection to the restoration application was rejected, as earlier orders had not finally decided stay of execution or restoration of possession.
- In the Court’s view, Order 21 Rule 22 CPC does not require prior notice where execution is filed within two years of the decree, and under the M.P. amendment omission of notice invalidates an order only on substantial injury.
- Because this view differs from the coordinate bench decision in Dr. Subhash Chandra Jain, the question was referred to a larger bench and the Principal Registrar (Judicial) was directed to place the matter before the Chief Justice under Chapter IV Rule 8(3) of the M.P. High Court Rules, 2008.
- All earlier interim orders were vacated, and the parties must maintain the premises in their present condition and keep the status quo until further orders.
Why This Judgment Matters
- Landlords and tenants across Madhya Pradesh need clarity on whether possession can be taken without notice soon after an eviction decree, often while an appeal is being filed.
- It shows the operation of the M.P. amendment to Order 21 Rule 22, which ties invalidity for want of notice to substantial injury.
- Until the larger bench decides, two conflicting single-bench views exist, and the question remains open.
What Should Advocates Take Away From the Judgment?
For Tenants and Landlords
- Tenants facing an eviction decree should file the appeal and seek stay promptly; execution can begin quickly.
- Landlords executing within two years should note that the question of prior notice is pending before a larger bench.
For Counsel
- Cite both Dr. Subhash Chandra Jain v. Shri Digambar Jain Mahila Trust and this reference order when notice under Order 21 Rule 22 is in issue in M.P.
- Where notice was omitted, plead and prove substantial injury, given the M.P. amendment’s proviso.
- Note that interim orders that do not finally decide an issue may not bar a later application by res judicata.
Key Takeaways
- Res judicata objection rejected.
- Single Judge reads Rule 22 as requiring no notice within two years.
- Conflict with earlier coordinate ruling referred to larger bench.
- Status quo on premises until further orders.
Frequently Asked Questions
Is notice to the tenant mandatory before executing an eviction decree in Madhya Pradesh?
The question is now pending before a larger bench. A coordinate bench in Dr. Subhash Chandra Jain held notice may be required in certain cases, while Justice Vinay Saraf took the view that no prior notice is required in law where execution is filed within two years of the decree.
What does the M.P. amendment to Order 21 Rule 22 say?
According to the order, its proviso makes an order invalid for omission of notice only where the judgment debtor has sustained substantial injury because of that omission.
Did the tenant get possession back?
Not at this stage. The Court referred the legal question to a larger bench, vacated earlier interim orders and directed both parties to maintain status quo over the premises until further orders.
Conclusion
The reference order is an example of judicial discipline at work: rather than departing from a coordinate bench ruling, the Court explained its disagreement and sent the issue for an authoritative answer. The outcome will affect how quickly eviction decrees can be executed in Madhya Pradesh.
Practical takeaway: In eviction matters in M.P., treat the need for Order 21 Rule 22 notice as unsettled until the larger bench rules, and act quickly on appeals and stay applications.
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