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Judgment
This order will dispose of IA No. 9502/2026, which is an application moved on behalf of the appellant under Order 39 Rule 1 & 2 read with Section 151 of CPC for restoring status quo ante.
This civil first appeal has been preferred by the defendant assailing the judgment and decree dated 15.5.2025 (memo of cost signed on 16.6.2025) passed by the 16th District Judge, Indore in RCS No. 488A/2020, whereby the suit filed by the respondent/plaintiff (hereinafter referred to as 'plaintiff') for eviction on the grounds enumerated under Section 12(1)(a) and 12(1)(f) of the M.P. Accommodation Control Act, 1961 (in short "Act 1961") was allowed and the decree of eviction, payment of arrears of rent and mesne profit has been passed in favour of the plaintiff.
The appellant (hereinafter referred to as 'defendant') filed the present appeal under Section 96 of CPC on 11.7.2025 and along with the appeal an application IA No. 6221/2025 has also been filed under Order 41 Rule 5 of CPC. The matter came up for hearing on 25.07.2025, when the time was granted to the plaintiff for filing reply to the stay application IA No. 6221/2025 and the matter was posted after two weeks. Thereafter, the matter was listed on 05.08.2025, when at 4:15 PM, the senior advocate appearing on behalf of the plaintiff informed to the Court that complete possession of the suit premises has already been handed over to the plaintiff by the process server. The matter was listed for further hearing on 06.08.2025 with the direction to the Executing Court to forward the copy of possession memo along with the comments of Nazir and process server to clarify that whether the possession has been handed over to the plaintiff till 4:30 PM on 05.08.2025 or not. On 06.08.2025 in the first round the matter was adjourned awaiting compliance report from the Executing Court and parties were directed to maintain status quo in respect of possession of the suit premises. Till 4:30 PM, no report from Executing Court was received, therefore, matter was adjourned for two weeks with a direction to the parties to maintain the status quo. Thereafter by order dated 11.12.2025 IA No. 6221/2025 filed under Order 41 Rule 5 of CPC, IA No. 8836/2025 filed for appointment of the court commissioner and IA No. 8969/2025 filed by the plaintiff for vacating interim status quo order have been decided by common order, whereby liberty was granted to the parties to approach to the Executing Court for the relief sought in the applications and the applications were disposed of with the aforesaid observation. Status quo order was continued in the appeal. The relevant para of the order is reproduced hereunder for sake of convenience :-
"6.In view of the settled legal position that an Appellate Court should normally not interfere in execution proceedings unless exceptional circumstances are made out, and since all grievances raised by the parties (including the legality/completeness of delivery of possession, alleged continuation of execution after court hours, alleged remaining movables inside the premises, and the effect of the status-quo order dated 06.08.2025) can be effectively raised and decided by the learned Executing Court itself, this Court is of the considered opinion that the High Court is not the appropriate forum at this stage to grant or modify the reliefs prayed for in these applications.
7.The parties are at liberty to approach the learned Executing Court with appropriate applications for the reliefs now sought before this Court. All questions in this regard are expressly kept open.
8.Consequently, I.A. Nos. 6221/2025, 8836/2025 and 8969/2025 are disposed of/rejected with the above observations and liberty."
Thereafter, the parties approached to the Executing Court, however one application IA No. 12750/2025 was filed by the appellant under Order 39 Rule 1 & 2 read with Section 151 of CPC seeking stay on execution of the impugned judgment and decree and also prayed for making status quo order absolute till pendency of the first appeal. That application was decided by the Court on 22.1.2026, by which the application was dismissed, however a direction was issued to the Executing Court to prepare the inventory of the items still lying in the suit premises and handover the same to the defendant. The relevant paras of the order are as under :-
"6.The prayer in the present application is that the order of status quo be made absolute and till pendency of this appeal further enforcement of impugned judgment dated 15.5.2025 and decree dated 16.6.2025 may be kept in abeyance. However, the appellant himself has placed on record the proceedings of execution and the Kabza warrant. The delivery of possession in execution proceedings has been done and the documents in this behalf are placed on record before this Court. As such, the Court is of the considered view that at this stage no such exceptional case is made out by the appellant that possession of the appellant be restored. Apart from this, appellant has not pleaded the requirements of Order 39 Rule 1(a) CPC as appellant being defendant is required to demonstrate before this Court that in absence of interim injunction property in dispute in a suit is in danger of being wasted, damaged or alienated by any party to the suit. This has even not been pleaded. The only emphasis of learned counsel for the appellant is that the suit property is a commercial place, where the appellant was doing commercial activity. His emphasis is that the appellant purchased entire business of the respondents, thus the suit before the trial Court was not maintainable and for this reason he submits that impugned judgment and decree should be stayed. However, as already mentioned the application for stay filed under Order 41 Rule 5 CPC has already been rejected by coordinate Bench on 11.12.2025. As such, this relief cannot be granted in an application filed Order 39 Rule 1 and 2 CPC. As regards the possession the executing Court has delivered possession in discharge of impugned judgment and decree on 5.8.2025. The documents in this regard are placed on record, which is not under challenge before this Court. As regards submission regarding destroying business for last five months, this is not the subject matter of the challenge. This Court is of the considered view that at this stage no such case is made out that possession of the appellant be restored or further proceedings of execution be stayed as the delivery of possession has already been done. Thus, in the considered view of this Court no relief as claimed by the appellant by way of instant application can be granted to him. 7. In view of the aforesaid analysis I.A.No.12750/2025 is hereby rejected."
Thereafter the appeal was came up for hearing on 21.8.2026, when this Court stayed the further proceedings of Executing Case No. 58-A/2025 till the next date of hearing. The said order is still in force and subject application IA No. 9502/2026 has been moved by the appellant for restoration of possession.
This application has been moved on the ground that the Executing Court has not recorded the reasons for issuance of possession warrant without serving any prior notice to the appellant and in the absence of prior notice, no possession warrant could be issued and issuance of possession warrant without notice is wholly arbitrary, illegal, invalid and in gross violation of the principles of natural justice. The plaintiff has forcibly taken over the possession from the defendant causing grave prejudice and substantial injury and the possession was not received by the plaintiff by following due process of law as enumerated under Rule 22 of Order 21 of CPC, which provides for issuance of show-cause notice against execution to the judgment debtor. It is further submitted in the application that earlier also an application under Section 144 of CPC IA No. 9166/2025 was filed, which is still pending and IA No. 12750/2025 has already been dismissed by order dated 22.1.2026. By describing the conduct of the respondent, the appellant has prayed for restoration of possession during pendency of the present appeal.
The application is opposed by the respondent/plaintiff mainly on the ground that the trial Court has passed the decree of eviction and recovery of Rs. 44,55,000/- as arrears of rent. The appeal is still pending and there was no injunction order in force in favour of the appellant, therefore, the Executing Court has not committed any error in issuing the possession warrant and possession of the suit premises has already been handed over to the plaintiff by the process server on 5.8.2025 before 4:30 PM. It is further submitted by the plaintiff that being the decree holder, the plaintiff was entitled to seek execution in accordance with the provisions of Order 21 of CPC. The provisions of Order 21 Rule 22 of CPC do not cast any responsibility on the Executing Court to issue prior notice to the judgment debtor before issuance of the possession warrant, if the execution petition has been filed within 2 years from the date of passing of decree. The Court has already dismissed the application filed under Order 41 Rule 5 of CPC in this appeal on 11.12.2025 and the application filed under Order 39 Rule 1 & 2 of CPC by order dated 22.1.2026, wherein the pleadings were also raised for the purpose of restoration of possession and in view of the provisions of law, the re-agitation of the same relief is barred by the principles of finality embodied in Section 11 of CPC. The applications were finally heard and decided by the court. Section 11, including the principle of constructive res-judicata under Explanation IV and its application to execution proceedings under Explanation VII prohibits repeated litigation of matters, which have already been finally considered. The 48 items lying in the premises have already been handed over to the appellant. No case for restoration of possession is made out. The plaintiff prayed for dismissal of the application.
Heard Shri Amit S. Agrawal, learned Senior Advocate along with Shri Pramod C. Nair Advocate on behalf of the appellant and Shri Vishal Baheti, learned Senior Advocate along with Shri Yash Nagia Advocate for the respondent.
Senior Advocate Shri Amit S. Agrawal submits that the Executing Court was under an obligation to issue a prior notice, even in a case where the execution application has been filed within a period of 2 years from the date of passing of the decree. He submits that as per the provisions of Order 21 Rule 22(2) of CPC it was essential for the Executing Court to record the reasons for not issuing the notice to the judgment debtor before issuance of possession warrant. Mr. Agrawal relied upon the judgment delivered by the Coordinate Bench in Second Appeal No.1824/2025 on 29.7.2025 in the mater of Dr. Subhash Chandra Jain Vs. Shri Digambar Jain Mahila Trust and submits that this has already been decided by the coordinate Bench that even in execution application filed within 2 years from the date of passing of a decree, the Executing Court should issue the show-cause notice to the judgment debtor and the necessity of issuance of notice may be avoided only after assigning the cogent reasons by the Executing Court. He relied on Para nos. 2, 5, 6, 18, 23 and 27 of the judgment, which read as under:-
"2.Instant second appeal has been filed by the appellant/defendant/tenant challenging the judgment and decree dated 04.07.2025 passed by Third District Judge, Sagar in RCA No.126/2024 affirming the judgment and decree dated 27.09.2024 passed by First Civil Judge Junior Division, Sagar in RCSA 61/2018, whereby Courts below have concurrently decreed the plaintiff’s suit for eviction of rented premises as well as arrears of rent as per general provisions of the Transfer of Property Act, 1882. 5. But, as it is clear from the record of Executing Court, in the present case even before filing of this second appeal by the appellant before this Court, under the orders of Executing Court, the appellant was dispossessed from the rented premises, therefore, with a view to remove ambiguity, if any, which may occur at the time of restoration of possession, some order is required to be passed on the pending application under Section 144 of C.P.C. 6. As has been argued by learned Counsel for the parties, in the instant second appeal, following substantial question of law is involved for consideration of this Court :
“Whether notice to the judgment debtor is not necessary, when execution application is filed within a period of two years?
18.In the present case due to hurried steps taken by the Executing Court, the appellant has suffered a great loss to his property and reputation, who was forced to vacate the rented premises illegally i.e. without issuing any notice provided under Order XXI Rule 22 of CPC, which is nothing but burial of justice, because the act of Executing Court has flouted well known principle of natural justice, mistakenly or otherwise.
23.It is also not disputed that if the decree holder has taken some benefit/possession under the order/decree and in appeal/revision, if the order/decree is reversed, then the judgment debtor is entitled for restoration of such benefit/possession, as has been held by Hon’ble Supreme Court in the case of Om Prakash Ram vs. The State of Bihar & Ors., (2019) 14 SCC 281, relevant paragraphs of which are as under :
“10.It is evident that the possession of the property in question needs to be restored in favour of the appellant, inasmuch as he was dispossessed based on the ex-parte decree dated 06.06.1994 which ultimately came to be set aside, and as the underlying suit (viz. Title Suit No. 01/2003) itself came to be dismissed vide order dated 29.08.2006, as mentioned supra. 11. The appeals are allowed with the above observations. It is open to the appellant to get back possession of the property in question in accordance with law in terms of this judgment.”
27.Although in the present case, the decree of eviction is still intact, but as agreed between the parties, effect and operation of the impugned judgment and decree has been postponed upto 30.06.2026, therefore, the appellant deserves to be restored with the possession of rented premises along with the articles which are already inside as is clear from the inventory. "
He further submits that under the scope of Section 151 of CPC, the inherent power of the court is in addition to and complementary to the powers expressly conferred under the Code and for securing ends of justice, the inherent power under Section 151 of the Code can be exercised. He relied on the judgment delivered by the Supreme Court in the matter of Vinod Seth Vs. Devinder Bajaj and Another reported in (2010) 8 SCC 1. The relevant paras reads as under:-
"29.Considering the scope of Section 151, in Padam Sen v. State of Uttar Pradesh (AIR 1961 SC 218), this Court observed:
"8...........The inherent powers of the court are in addition to the powers specifically conferred on the court by the Code. They are complementary to those powers and therefore it must be held that the court is free to exercise them for the purposes mentioned in S.151 of the Code when the exercise of those powers is not in any way in conflict with what has been expressly provided in the Code or against the intentions of the Legislature.............."
9...........The inherent powers saved by S.151 of the Code are with respect to the procedure to be followed by the Court in deciding the cause before it. These powers are not powers over the substantive rights which any litigant possesses. Specific powers have to be conferred on the courts for passing such orders which would affect such rights of a party." (emphasis supplied)
30.In Manohar Lal Chopra v. Rai Bahadur Rao Raja Seth Hiralal - AIR 1962 SC 527, this court held :
"21.....that the inherent powers are not in any way controlled by the provisions of the Code as has been specifically stated in S.151 itself. But those powers are not to be exercised when their exercised may be in conflict with what had been expressly provided in the Code or against the intentions of the legislature."
31.In Ram Chand and Sons Sugar Mills Pvt. Ltd.v. Kanhayalal Bhargav AIR 1966 SC 1899 this court reiterated that the inherent power of the court is in addition to and complementary to the powers expressly conferred under the Code but that power will not be exercised if its exercise is inconsistent with, or comes into conflict with any of the powers expressly or by necessary implication conferred by the other provisions of the Code. Section 151 however is not intended to create a new procedure or any new right or obligation.
32.In Nainsingh v. Koonwarjee AIR 1970 SC 997, this Court observed:
"4..............Under the inherent power of Courts recognized by Section 151 CPC, a Court has no power to do that which is prohibited by the Code. Inherent jurisdiction of the Court must be exercised subject to the rule that if the Code does contain specific provisions which would meet the necessities of the case, such provisions should be followed and inherent jurisdiction should not be invoked. In other words the court cannot make use of the special provisions of Section 151 of the Code where a party had his remedy provided elsewhere in the Code...."
Mr. Agrawal further relied on the judgment delivered by the Supreme Court in the matter of Arjun Singh Vs. Mohindra Kumar and others reported in AIR 1964 SC 993, wherein the Supreme Court has held that the interlocutory orders are of various kinds; some like order of stay, injunction or receiver, are designed to preserve the status quo pending the litigation and to ensure that the parties might not be prejudiced by the normal delay, which the proceedings before the court usually take. They do not, in that sense, decide in any manner the merits of the controversy in issue in the suit and do not, of course, put an end to it even in part. Such orders are certainly capable of being altered or varied by subsequent applications for the same relief, though normally only on proof of new facts or new situations which subsequently emerge the orders may be altered. As they do not impinge upon the legal rights of parties to the litigation the principle of res judicata does not apply to the findings on which these orders are based, though if applications were made for relief on the same basis after the same has once been disposed of, the court would be justified in rejecting the same as an abuse of the process of law. There are other orders, which are also interlocutory, but would fall into a different category. The difference from the ones just now referred to lies in the fact that they are not directed to maintaining the status quo or to preserve the property pending the final adjudication, but are designed to ensure the just, smooth, orderly and expeditious disposal of the suit. They are interlocutory in the sense that they do not decide any matter in issue arising in the suit, nor put an end to the litigation. Mr. Agrawal submits that even in the same proceedings the application for stay, injunction or receiver or for preserving the status quo pending the litigation may be filed on the basis of new facts and that will not hit by the principles of res judicata.
Relying upon the judgment of Supreme Court in the matter of Pandurang Ramchandra Mandlik Vs. Shantibai Ramchandra Ghatge and others reported in 1989 Supp (2) SCC 627 Mr. Agrawal submits that a matter in respect of which no relief is claimed cannot be 'directly and substantially in issue' in a suit in which a decree is passed ex parte though the Court may have gone out of its way and declare the plaintiff to be entitled to relief in respect of such matter. He submits that though in the application IA No. 12750/2025 it was mentioned that the appellant is entitled for the restoration of possession, but no such relief was sought in the application and, therefore, the observations of this Court in order dated 22.1.2026 that no case for restoration of possession is made out, will not operate as res-judicata for deciding the instant application as the matter was not directly and substantially in issue in the earlier application, because no such relief was sought in that application. He submits that similar law has been laid down by the Supreme Court in the matter of Madhvi Amma Bhawani Amma and others Vs. Kunjikutty Pillai Meenakshi Pillai and others reported in (2000) 6 SCC 301, wherein the Supreme Court has held that there should be an issue raised and decided, not merely any finding on any incidental question for reaching such a decision and if no such issue is raised and if on any other issue incidentally any finding is recorded, it would not come within the periphery of the principles of res judicata. The decision on an issue may operate as res judicata and not a mere finding on any incidental question to reach such decision, would operate as res judicata.
Mr. Agrawal referred judgment of Supreme Court in the matter of Sajjadanashin Sayed Vs. Musa Dadabhai Ummer and others reported in (2000) 3 SCC 350, wherein the Supreme Court has explained a matter in respect of which, relief is sought can be said to be generally a matter 'directly or substantially in issue'. If any issue is considered and decided only collaterally or incidentally, would not be treated as an issue involved directly and substantially and the findings on an issue, which was involved collaterally or incidentally, would not amount to res judicata.
Mr. Agrawal further relied on a judgment delivered by the Supreme Court in the matter of Yadaiah and another Vs. State of Telangana and others reported in (2023) 10 SCC 755, wherein the Supreme Court has reiterated the earlier view and held that if an issue is not directly involved and no relief is sought in respect of the issue, the finding recorded on that issue would not be treated as res judicata. Mr. Agrawal submits that in the applications filed earlier either under Order 41 Rule 5 of CPC (IA No. 6221/2025) or application filed under Order 39 Rule 1 & 2 read with Section 151 of CPC (IA No. 12750/2025) no relief for restoration of possession was sought and, therefore, if any pleading made in the said applications or any observation, finding recorded by the court at the time of deciding those applications, would not operate as res judicata for deciding IA No. 9502/2026, wherein for the first time the appellant is seeking relief of interim mandatory injunction to restore the possession of suit premises on the ground that the possession warrant, which was issued by the Executing Court was itself illegal, arbitrary and contrary to the provisions of Order 21 Rule 22 of CPC. He submits that in the facts and circumstances of the case, where no prior notice was issued by the Executing Court to the judgment debtor before issuance of possession warrant and no reasons and satisfaction were recorded in the proceedings that why the notice should not be issued to the judgment debtor, the action of the Executing Court was ex-facia illegal, incorrect, unjust and liable to be set aside and considering the fact that this first appeal is still pending, the application be allowed and the possession of the suit premises be returned back to the appellant. He prays for allowing the application.
Learned Senior Advocate appearing on behalf of the respondent/plaintiff opposed the application and submits that there is no such provision in Order 21 Rule 22 CPC to record the reasons for not issuing prior notice to the judgment debtor in an execution filed within 2 years from the date of passing the decree and the executing court has not committed any error in issuing the possession warrant, as the period granted by the trial court for handing over the possession had already been expired, there was no stay order in force and, therefore, the Executing Court was under obligation to issue the possession warrant in the absence of any restraining order and the Executing Court has not committed any illegality.
The learned counsel further submits that this issue was already considered by this Court in the order dated 11.12.2025 and 22.1.2026. He submits that in IA No. 12750/2025, which was decided by order dated 22.1.2026, it was specifically pleaded by the appellant that the possession has been taken over from the appellant and the same be returned back to the appellant. The court considered the prayer of the appellant and recorded in its order in Para 2.3 that "in the backdrop of the submissions in the application learned counsel for the appellant submits that the delivery of possession pursuant to impugned judgment and decree is illegal. Thus, by issuing interim injunction in terms of Order 39 Rule 1 and 2 possession of the appellant deserves to be restored." He submits that this argument was considered by the Court and it is held by the Court in order dated 22.1.2026 that in view of this Court at this stage, no case is made out that possession of the appellant be restored or further proceedings of execution be stayed as the delivery of possession has already been done. The application was dismissed by the Court and thereafter once again the similar application has been filed raising the similar objections and that is not maintainable.
He submits that even in the same case, if an order is passed at an earlier stage, that would operate as res judicata. He has relied on a judgment delivered by the coordinate Bench in the matter of Ann. Chandiramani and others Vs. Union of India and others reported in 2025 SCC OnLine MP 4002. He prays for dismissal of the application.
Both the parties have advanced the arguments extensively on the issue of principles of finality and res judicata. The appellant has raised this issue that as the prayer for restoration of possession was not made in any of the applications earlier, therefore, the principles of res judicata would not operate in the case in hand, whereas counsel for the respondent has submitted that in the pleadings of the earlier IA No. 12750/2025, it was pleaded and the Court has finally decided the same issue of return of possession by order dated 22.1.2026 and, therefore, the appellant cannot be permitted to re-agitate the same without any change in the circumstances. Counsel for the respondent has submitted that this application has not been filed on the basis of any subsequent event and, therefore, it will operate as res judicata.
Before considering the issue of res judicata, in view of this Court firstly it would be desirable to examine the earlier orders dated 11.12.2025 and 21.01.2026 to ascertain that whether the issue was already decided by this court or not. By order dated 11.12.2025, the coordinate bench has disposed off/ rejected the applications filed for stay of execution, appointment of commissioner and vacation of interim order of status quo. The coordinate bench without deciding these applications on merits simply disposed off with the liberty to the parties to approach the executing court for seeking the reliefs sought by them in these applications. Rather the coordinate bench has held that the proper forum for seeking these reliefs are the executing court.
When another application has been filed under Order 39 rule 1-2 of CPC, the same was dismissed on 21.01.2026 by coordinate bench mainly on the ground that earlier the application filed under Order 41 rule 5 of CPC has already been dismissed on 11.12.2025 and the second application has not been filed on any subsequent events. And now when an application has been filed for restoration of possession on the ground that the executing court has committed error in issuing the possession warrant without serving any prior notice in accordance with rule 22 (2) of Order 21 of CPC, the objection has been raised by the plaintiff that the application is not maintainable in view of the principles of finality and res-judicata. This court has carefully examined the proceedings of the case for the purposes of considering the objection of res-judicata. It is no more res integra that if an issue has already been decided finally on merits by the competent court, the same cannot be re-agitated by the same party or the party claiming through him, even in the different stages of the same case. However, from perusal of proceedings of this appeal, it transpires that the coordinate bench instead of deciding the application filed by the appellant under Order 41 rule 5 of CPC on merits, relegated the appellant to executing court by order dated 11.12.2025 and when the appellant filed the second application, the same was dismissed on the ground that the coordinate bench has already rejected the application and no subsequent event has been pleaded by the appellant. By order dated 21.01.2026, the application dismissed by the coordinate bench mainly on the ground of dismissal of the earlier application. Meaning thereby, the issue of stay of execution of impugned decree, restoration of possession have not been finally decided in this appeal, and therefore the objection of res-judicata raised by the respondent is not sustainable.
Now it is required to consider that on which basis the appellant is making a prayer for restoration of possession. The sole ground of the appellant seeking restoration of possession is that the possession warrant was issued in a hurried manner, the appeal was already pending and without issuing any notice to the judgment debtor, the Executing Court directly issued the possession warrant and no reasons were recorded by the Executing Court for not issuing prior notice to the judgment debtor i.e. appellant. To bolster this argument, learned Senior Advocate Shri Amit S. Agrawal heavily relied on the judgment delivered by the coordinate Bench in the matter of Dr. Subhash Chandra Jain (supra), which reads as under:-
"16.There is another provision under Order XLI Rule 5(2) CPC which gives the power to appellate Court to stay the execution of decree and as per the decision in the case of Ku. Arvinder Kaur and Ors. Vs. Shankerlal Jain and Ors., 1997 MPJR (I) SN 14, the Executing Court itself has jurisdiction to stay the execution for some reasonable time, certainly upon filing an application in that regard. But in the present case, no notice to the appellant/judgment debtor was issued, therefore, he could not take that recourse available under the Civil Procedure Code, 1908. In my considered opinion, all the aforesaid provisions have been made with a view to avoid any hardship to the bonafide litigant/judgment debtor.
17.It is well known that justice delayed is justice denied but at the same time in some cases justice hurried may amount to justice buried. In the case of Mahadev Govind Gharge & others v. Special Land Acquisition Officer, Upper Krishna Project, Jamkhandi, Karnataka, (2011) 6 SCC 321, Hon’ble Supreme Court has held as under :
“28.In the case of Kailash v. Nanhku & others, [(2005) 4 SCC 480], a Bench of three Judges of this Court while interpreting the provisions of Order VIII Rule 1 of the Code, which has more stringent language and provides no such discretion to extend the limitation as provided to the Courts in Order XLI Rule 22, had observed that despite the use of such language in the provisions of Order VIII Rule 1 of the Code, the judicial discretion to extend the limitation contained therein has been a matter of legal scrutiny for quite some time but now the law is well settled that in special circumstances, the Court can even extend the time beyond the 90 days as specified therein and held as under:
"The object is to expedite the hearing and not to scuttle the same. The process of justice may be speeded up and hurried but the fairness which is a basic element of justice cannot be permitted to be buried...
In an adversarial system, no party should ordinarily be denied the opportunity of participating in the process of justice dispensation. Unless compelled by express and specific language of the statute, the provisions of CPC or any other procedural enactment ought not to be construed in a manner which would leave the Court helpless to meet extraordinary situations in the ends of justice."
18.In the present case due to hurried steps taken by the Executing Court, the appellant has suffered a great loss to his property and reputation, who was forced to vacate the rented premises illegally i.e. without issuing any notice provided under Order XXI Rule 22 of CPC, which is nothing but burial of justice, because the act of Executing Court has flouted well known principle of natural justice, mistakenly or otherwise.
19.It is also well known principle of law that nobody should remain unheard and if before passing an order against a party, he is not heard, the order would be void and would not be binding on that party because the Court gets jurisdiction over the matter only when the opposite/affected party is heard. Meaning thereby, the order passed without notice/hearing is without jurisdiction and order passed without jurisdiction is nullity. In the case of Mujtabai Begum and another v. Mehbub Rehman and others, AIR 1959 MP 359, a division Bench of this Court has held as under:
“16.The effect of an omission to issue notice is elaborately discussed in Govinda Pillai v. K. L. Muthali (S) AIR 1955 Tray Co 113. In that case, an ex parte decree was first passed against three defendants, but it was set aside at the instance of one of them. The suit was heard again and was decreed against all of them for a larger sum. It was held that defendant No. 1, who was not given notice of subsequent trial, was not bound by the decree which was null and void against him. The following passage from Brown on Jurisdiction was quoted in support of the dictum:
"When service of the notice or process is made the Court acquired jurisdiction after the lapse of the, time fixed for the defendant's appearance, and if he fails his default will be entered. The Court has necessarily the power to determine the sufficiency of service. If it determines this wrongfully and enters the default prematurely, the defendant should call its attention to it and ask that the default be set aside. Hence the rule that such error is not jurisdictional.
A distinction is to be made between a case where there is no service whatever, and one which is simply defective or irregular. In the first case the Court acquires no jurisdiction and its judgment is void; in the other case, if the Court to which the process is returnable adjudges the service to be sufficient, and renders a judgment thereon, such judgment is not void, but only subject to be set aside by the Court which gave it, upon reasonable and proper application, or reversed upon appeal".
Reference was also made to several cases decided by the Travancore-Cochin High Court, and the conclusion reached was that a decree which is passed without notice to a defendant must be regarded as no decree in the eye of law and must be disregarded. We respectfully agree with this view.”
"25.Although Order XXI Rule 22 of CPC provides that no notice is necessary if the execution petition is filed within two years from the date of final order but an exception must be carved out in certain cases of decrees for possession/eviction. It is a settled principle of law that the decree-holder should not be deprived of the fruits of the decree. However, if the execution is carried out with undue haste, or if there is element of fraud, collusion, or procedural irregularity, and the judgment debtor is dispossessed even before the appeal period lapses, it may result in grave injustice. Particularly where the possession of a house, shop, or land is taken away, which directly affects residence or livelihood, the judgment debtor must be given a fair opportunity to approach the appellate Court.
26.Therefore, even if the execution petition is filed within two years, notice must be issued, if it is filed before expiry of limitation period of 30 days or 90 days, prescribed for filing appeal as provided under Article 116 of the Limitation Act, with a view to allow the judgment debtor a chance to exercise his right to appeal. Beyond this initial appeal period, execution can proceed without notice provided no special circumstances exist. Accordingly, the substantial question of law is answered."
For better appreciation, the provision of Order XXI Rule 22 of CPC is reproduced as under :
Order XXI 22. Notice to show cause against execution in certain cases -
(1)Where an application for execution is made,-
(a)more than two years after the date of the decree, or
(b)against the legal representative of a party to the decree or where an application is made for execution of a decree filed under the provisions of section 44A, or
(c)against the assignee or receiver in insolvency, where the party to the decree has been adjudged to be an insolvent, the Court executing the decree shall issue a notice to the person against whom execution is applied for requiring him to show cause, on a date to be fixed, why the decree should not be executed against him :
Provided that no such notice shall be necessary in consequence of more than two years having elapsed between the date of the decree and the application for execution if the application is made within two years from the date of the last order against the party against whom execution is applied for, made on any previous application for execution, or in consequence of the application being made against the legal representative of the judgment-debtor if upon a previous application for execution against the same person the Court has ordered execution to issue against him.
(2)Nothing in the foregoing sub-rule shall be deemed to preclude the Court from issuing any process in execution of a decree without issuing the notice thereby prescribed, if, for reasons to be recorded, it considers that the issue of such notice would cause unreasonable delay or would defeat the ends of justice."
From bare reading of the above provision, it is apparent that there is no requirement of issuance of show cause notice to the judgment debtor, if the execution is preferred within two years from the date of decree. Sub section (2) further provides that even in a case, where the execution has been preferred after two years from the date of decree, the executing court can issue the process without issuing the notice after recording the reasons, if it considers that the issuance of such notice would cause unreasonable delay or would defeat the ends of justice. Meaning thereby, there is no requirement in law to issue prior notice to the judgment debtor, in any circumstances, if the execution has been preferred within two years.
The learned Senior Counsel for the appellant has fairly pointed out the M. P. amendment in rule 22 of Order 21 of CPC, which reads as under :-
"provided that no order for the execution of a decree shall be invalid by reason of the omission to issue a notice under this rule, unless the judgment debtor has sustained substantial injury by reason of such omission. "
The M.P. Amendment has not been considered by the coordinate bench at the time of passing the judgment in Dr. Subhash Chandra Jain (supra), wherein the coordinate Bench has held that where the possession of a house, shop or land is taken away, which directly affects residence or livelihood, the judgment debtor must be given a fair opportunity to approach the appellate court and if the execution petition is filed before the expiry of the limitation period prescribed for filing appeal as provided under Article 116 of the Limitation Act, with a view to allow the judgment debtor a chance to exercise his right to appeal, the notice should be issued to the judgment debtor, however beyond this initial appeal period, execution can proceed without notice provided no special circumstances exist.
With the help of the judgment delivered by coordinate bench in Dr. Subhash Chandra Jain (supra), the learned senior counsel for the appellant submits that in the case in hand the judgment and decree was passed on 15.5.2025 and the memo of cost was signed on 16.6.2025. This appeal was preferred within limitation on 11.7.2025. Execution petition was not filed before filing the appeal. The limitation for filing first appeal before the High Court is 90 days from the date of decree or order, in view of Article 116(a) of the Limitation Act. The judgment and decree was passed on 15.5.2025. The execution was filed within the period of 90 days, before expiry of the period provided for filing the first appeal. No prior notice was issued to the judgment debtor before issuance of possession warrant, which was also issued before expiry of the period of limitation prescribed for filing the first appeal before High Court. Even possession warrant was executed within 90 days from the date of passing of the decree. The decree holder was having knowledge regarding the pendency of this first appeal, as the counsel on behalf of the respondent marked his presence in this first appeal on 25.7.2025. It was not informed by the counsel at that time that the execution has already been filed and possession warrant has been issued. It was not informed to the execution court that the first appeal has already been filed and appeal is listed for consideration of stay application after two weeks. He further submits that the possession warrant has been issued by the executing court in a hurried manner and possession has been taken on the day, when this first appeal was listed before this court for consideration of stay application, to frustrate the relief of stay. The conduct of the respondent is highly condemnable, and therefore the complete process is vitiated in light of the judgment delivered by the coordinate bench in Dr. Subhash Chandra Jain (supra). He prays for restoration of possession obtained by the respondent illegally.
This is a fact that when the possession warrant was issued, there was no legal impediment in execution of the warrant and no interim order of High Court was in force. The applicant was running a show room and workshop of four wheelers in the suit premises, but the appellant was also not vigilant and no application was filed or intimation was supplied by the appellant to the executing court under the provisions of Order 41 rule 5(2) of CPC that first appeal has already been filed and listed for consideration of stay application. The appellant cannot expect from the respondent to wait for possession in the absence of stay of execution by competent court. The appellant could have applied for stay before executing court itself before filing the appeal under the provisions of Order 41 rule 5(2) of CPC, but no such application has been filed by the appellant. Definitely, the appellant was negligent and resultantly suffered the loss of possession even during the pendency of appeal.
In view of this court firstly, there was no legal requirement to issue prior notice to the appellant and secondly, as per the M.P. amendment in Order 21 rule 22 of CPC, no order for the execution of a decree shall be invalid by reason of the omission to issue a notice. This court respectfully disagrees with the judgment delivered by the coordinate bench in Dr. Subhash Chandra Jain (supra), as there is no separate legal provision for execution of possession and eviction decrees and in the judgment M. P. Amendment in Order 21, rule 22 of CPC had not been considered, however, as per judicial discipline, a bench of equal strength can neither ignore the earlier judgment of coordinate bench, nor deliver a contrary judgment and if a bench of equal strength is in disagreement with the previous view or believes that it is incorrect, can only refer the matter to the Hon'ble Chief Justice for reconsideration of the question by a larger bench.
In my view the following question emerges consideration by larger bench :-
"Whether in an execution petition filed to execute the decree of possession or eviction within two years from the date of decree, issuance of notice to the judgment debtor is mandatory, in view of the provisions of Order XXI rule 22 of CPC and MP amendment?"
3 0 . This Court deem it proper to make a reference to Hon'ble the Chief Justice with a request under the provisions of Chapter IV Rule 8(3) of the High Court of Madhya Pradesh Rules, 2008 to refer the issue involved in case to Larger Bench.
Principal Registrar (Judicial) is directed to place this order and other relevant papers before Hon’ble the Chief Justice for decision on the request of this court. Copy of this order be forwarded to the Principal Registrar (Judicial).
All earlier interim orders are hereby vacated. The parties are directed to maintain the subject premises in the same condition, as it exists today and will maintain the status quo, till further orders.