Case Note & Summary
The petitioner, Amol Subashrao Deshpande, was the original plaintiff who filed a suit for declaration, removal of encroachment, possession, and injunction against the respondent, Suresh Indal Chavan, regarding plot no.18 admeasuring 170 square meters at Khamgaon, District Buldana. The plaintiff claimed that the defendant had illegally encroached upon 25.50 square meters of the land. The suit was decreed on 23.12.2024, directing the defendant to remove encroachment and deliver vacant possession. The defendant filed Regular Civil Appeal No.5 of 2025 against the decree. Before the appeal was heard, on 03.05.2025, the plaintiff/decree holder, without filing execution proceedings, took possession of the suit property with police aid. The defendant filed an application at Exhibit 9 in the appeal under Section 151 of the Code of Civil Procedure, 1908, seeking restoration of possession. The appellate court allowed the application on 21.05.2025, restoring possession to the defendant. The plaintiff challenged this order under Article 227 of the Constitution of India. The High Court framed the issue whether a decree holder can take possession directly without execution proceedings. The court held that execution proceedings under Order 21 CPC are mandatory for enforcement of a possession decree, and the decree holder cannot take possession on its own. The appellate court's order restoring possession was justified as the plaintiff's action was without due process. The High Court dismissed the writ petition, upholding the appellate court's order.
Headnote
A) Civil Procedure - Execution of Decree - Possession Decree - Execution Proceedings Mandatory - A decree holder cannot take possession of suit property without filing execution proceedings under Order 21 CPC, even if no stay is granted against the decree. The appellate court has inherent power under Section 151 CPC to restore possession to the judgment-debtor if dispossession is effected without due process of law. (Paras 2-10) B) Civil Procedure - Inherent Powers - Section 151 CPC - Restoration of Possession - The appellate court can invoke Section 151 CPC to restore possession to the appellant/judgment-debtor when the decree holder takes possession without resorting to execution proceedings, as such action amounts to abuse of process of court. (Paras 7-10) C) Constitutional Law - Article 227 - Supervisory Jurisdiction - High Court under Article 227 of the Constitution of India can interfere with orders of subordinate courts if they suffer from jurisdictional error or perversity. In the present case, the appellate court's order restoring possession was held to be just and proper, warranting no interference. (Paras 1, 10)
Issue of Consideration
Whether a decree holder with a decree for possession is entitled to directly take possession of the suit property without filing execution proceedings only on the pretext of absence of stay to the decree.
Final Decision
The High Court dismissed the writ petition, upholding the order of the appellate court dated 21.05.2025 restoring possession to the respondent/judgment-debtor. The court held that the decree holder cannot take possession without execution proceedings, and the appellate court's order was just and proper.
Law Points
- Execution proceedings mandatory for possession decree
- Section 151 CPC inherent powers
- Article 227 constitutional remedy
- Restoration of possession pending appeal
