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 suit was decreed on 23.12.2024, directing the defendant to remove encroachment and deliver vacant possession. The defendant appealed (Regular Civil Appeal No.5 of 2025). Before the appeal was heard, on 03.05.2025, the plaintiff took possession of the suit property with police aid without filing execution proceedings. The defendant filed an application at Exhibit 9 under Section 151 CPC 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. The High Court framed the issue: whether a decree holder can take possession directly without execution proceedings. The Court held that a decree holder must file execution proceedings under Order 21 CPC; taking possession without court process is illegal. The appellate court has inherent power under Section 151 CPC to restore possession pending appeal to prevent abuse of process. The High Court dismissed the petition, upholding the appellate court's order.
Headnote
A) Civil Procedure - Execution of Decree - Possession Without Execution - Section 151 Code of Civil Procedure, 1908 - The issue was whether a decree holder can take possession directly without filing execution proceedings merely because there is no stay of the decree. The Court held that a decree holder must file execution proceedings under Order 21 CPC to obtain possession; taking possession without court process is illegal and the appellate court has inherent power under Section 151 CPC to restore possession pending appeal. (Paras 2-10) B) Civil Procedure - Inherent Powers - Restoration of Possession - Section 151 Code of Civil Procedure, 1908 - The appellate court allowed the application for restoration of possession filed by the judgment-debtor after the decree holder took possession without execution. The High Court upheld the order, holding that the appellate court can exercise inherent powers to prevent abuse of process and restore status quo ante. (Paras 5-10)
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.
Law Points
- Decree holder cannot take possession without execution proceedings
- Section 151 CPC inherent powers
- Restoration of possession pending appeal
- Article 227 jurisdiction
