The court granted interim protection against dispossession in an execution proceeding for specific performance, pending determination of whether the procedural mandates of Order 21 Rule 34 of the CPC were followed during the execution of the sale deed.

ORAL ORDER

1. The present appeal is being circulated on account of the urgency expressed by learned advocate Mr. C. B. Upadhyay in the morning session. It is submitted that an execution petition has been filed, and pursuant to the order passed by the learned Executing Court, the sale deed has been executed today at 11:00 a.m. It is further submitted that possession is likely to be taken in the course of the day, rendering the present appeal infructuous. It has been further stated that, for the purpose of execution of the sale deed, a notice has been issued by the Court Commissioner dated 25.02.2026.

2. Heard learned advocate Mr. C. B. Upadhyay for the appellant and learned advocate Mr. Naman Kinkhabwala for the respondent.

3. It is submitted by the learned advocate, Mr. C.B. Upadhyay, that the suit pertains to the specific performance of an agreement dated 28.01.2014, executed between the plaintiff and the defendant, whereby the defendant agreed to sell his residential property to the plaintiff for a total consideration of Rs. 8,00,000/-. It is submitted that out of the said amount, Rs. 3,00,000/- was paid by cheque, and subsequently, Rs. 1,80,000/- was paid in cash. Learned advocate Mr. Upadhyay further submits that, as per the terms and conditions of the agreement, the sale deed was required to be executed upon completion of the payment. However, without adherence to this condition, the plaintiff filed the suit seeking specific performance of the agreement. It is further submitted that the defendant, being in need of funds, borrowed Rs. 3,00,000/- from the plaintiff, in respect of which the sale deed was executed. At the time of borrowing, several signatures were obtained on documents which subsequently indicated that Rs. 1,80,000/- had also been paid, and the present appellant had issued a receipt in that regard. Learned advocate Mr. Upadhyay submits that the suit was decreed in favor of the defendant on 23.05.2025. Thereafter, an execution petition was filed, wherein the present appellant raised objections, contending that as the First Appeal is pending before this Court, no execution proceedings should be undertaken. It is submitted that the learned executing court, by order dated Exh. 16, appointed a Commissioner to prepare the sale deed and directed the Commissioner to complete the work in accordance with Order 21 , Rule 34 of the Code of Civil Procedure, after issuing notice to the parties. Learned advocate Mr. Upadhyay submits that, as per Order 21 , Rule 34 , the proper procedure for executing a decree requires issuance of notice to the judgment debtor, calling for objections, preparation of the draft sale deed, inviting objections thereto, and then, after necessary alterations or with the same draft, directing the Commissioner to execute the sale deed. It is submitted that the executing court did not follow this procedure and directed the Commissioner to execute the sale deed directly. Further, it is submitted that notice was issued by the Commissioner to the appellant only on 25.02.2026, requiring their presence for execution of the sale deed on 27.02.2026 at 10:30 a.m. The sale deed was, however, executed at 11:00 a.m. by the Court Commissioner before the learned Sub-Registrar’s Office. In view of the above, learned advocate Mr. Upadhyay prays that the Court may protect the possession of the appellant and pass such orders as it deems fit in the circumstances of the case.

4. Learned advocate Mr. Naman Kinkhabwala, appearing on advance copy, submitted that if two days’ time is granted, he shall obtain appropriate instructions. He further stated that, until the next date of hearing, no steps shall be taken to take possession of the subject property.

5. In view of the aforesaid statemen