A decree holder must utilize execution procedures as defined in the Code of Civil Procedure and cannot unilaterally take possession of property.

JUDGMENT :

PRAFULLA S. KHUBALKAR, J.

RULE. Rule is made returnable forthwith and heard finally with consent of the learned counsel for the parties.

2. An issue of vital importance arises in the instant petition as to 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.

3. This interesting question arises in the backdrop of challenge to the order dated 21.05.2025 passed on an application at Exhibit 9 by the Court of District Judge-1 Khamgaon, District Buldana in Regular Civil Appeal No.5 of 2025 allowing the application filed by the original defendant to restore his possession to the extent of 25.50 square meters area of the suit property.

4. The background facts are succinctly put below:-

(I) The petitioner is the original plaintiff who had filed suit for declaration, removal of encroachment, possession and injunction with respect to plot no.18 admeasuring 170 square meters situated at Khamgaon, District Buldana. The plaintiff claimed the defendant i.e. respondent herein had illegally encroached upon 25.50 square meters of land which is owned by the plaintiff. The suit was contested on merits by both the parties.

(ii) By judgment and decree dated 23.12.2024, the suit was decreed directing the defendant to remove encroachment and deliver vacant possession of the suit property alongwith a restraint on defendant from disturbing the peaceful possession of the plaintiff over the suit property.

(iii) In this backdrop of the existence of a decree directing the defendant to handover peaceful possession of the suit property the plaintiff sprung into action and after taking police aid took the possession of the suit property on its own on 03.05.2025 and has maintained the possession with him.

(iv) Relevant to note, the judgment and decree was subjected to challenge vide Regular Civil Appeal No.5 of 2025.

(v) Although, notice of the appeal was not served upon the plaintiff on 03.05.2025 when the decree holder took back the possession, however after four days i.e. on 07.05.2025, the defendant/appellant in the appeal, filed the application at Exhibit 9 in the pending appeal and sought for recovery of possession by invoking provisions of Section 151 of the Code of Civil Procedure, 1908 and sought restoration of the possession.

(vi) The original plaintiff (respondent in the appeal) appeared and objected to the maintainability of the application for restoration of possession, however after hearing the parties, the appellate Court passed order dated 21.05.2025 by which the application for restoration of the possession was allowed.

Feeling aggrieved by this order, the original plaintiff had invoked jurisdiction of this Court under Article 227 of the Constitution of India. Pertinently, in the controversy that has arisen, the plaintiff has claimed that in absence of any stay to the decree or service of any notice upon him of any civil appeal challenging the decree, the petitioner-original plaintiff was entitled to get back the possession since he was armed with a decree of possession.

5. Shri P.S. Tiwari, learned counsel for the petitioner-original plaintiff vehemently submitted that the plaintiff was entitled to take back possession of the suit property as the decree was in force and there was no hurdle existing on the said date. He submitted that after the suit was decreed, the defendant was infact bound to handover the possession on his own and since there was no stay to the execution of the decree, the plaintiff was entitled to take b