Order 21 Rule 22 CPC | Notice To Judgment Debtor Not Mandatory If Eviction Decree Executed Within Two Years: Madhya Pradesh High Court Disagrees With Coordinate Bench, Refers To Larger Bench

"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." Disagreeing with a coordinate bench ruling, the Madhya Pradesh High Court on October 26, 2026, held that under Order 21 Rule 22 of the Code of Civil Procedure, 1908 along with the Madhya Pradesh State Amendment, there is no legal requirement to issue prior notice to a judgment debtor before issuing a possession warrant if the execution petition is initiated within two years from the date of the decree.

A single bench of Justice Vinay Saraf declined to follow the precedent in Dr. Subhash Chandra Jain v. Shri Digambar Jain Mahila Trust, wherein a coordinate bench had previously carved out an exception mandating show cause notice in eviction matters filed within the statutory appeal period. In deference to judicial discipline, Justice Saraf referred the question of law to the Chief Justice for consideration by a Larger Bench.

The trial court had decreed an eviction suit in favour of the plaintiff-respondent under the M.P. Accommodation Control Act, 1961, alongside directing payment of arrears of rent and mesne profits. The appellant-tenant approached the High Court in a first appeal and applied for interim relief, but before any restraining order was granted, the executing court issued a possession warrant within 90 days of the decree and handed over possession of the commercial premises to the decree holder. Aggrieved by the dispossession, the appellant filed an interim application under Order 39 Rules 1 and 2 read with Section 151 CPC seeking restoration of status quo ante on the ground that the execution warrant was issued without prior show-cause notice.

Whether in an execution petition filed to execute a decree of possession or eviction within two years from the date of the decree, issuance of notice to the judgment debtor is mandatory in view of the provisions of Order 21 Rule 22 CPC and the Madhya Pradesh State Amendment?

Whether the judgment debtor is entitled to restoration of possession when an eviction decree is executed during the pendency of a statutory appeal period without prior notice?

Rejection of initial stay applications without adjudication on merits does not attract principles of res judicata

Dealing with the respondent's preliminary objection that repeated applications for interim relief were barred by constructive res judicata under Section 11 of the CPC, the High Court observed that previous interim applications under Order 41 Rule 5 and Order 39 Rules 1 and 2 were not decided on their substantive merits. The coordinate bench had merely relegated the parties to the executing court without adjudicating the legality of the dispossession.

The Court observed that because the question of stay of execution and restoration of possession had not attained final determination on merits at any prior interlocutory stage, the appellant's subsequent application for restoration could not be rejected merely on the anvil of res judicata.

Statutory framework of Order 21 Rule 22 CPC dispenses with notice if execution is instituted within two years

Examining the plain text of Order 21 Rule 22 CPC, the Court highlighted that the requirement of issuing a show cause notice arises only where the execution application is preferred more than two years after the date of the decree or against legal representatives and assignees.

The Court observed that Order 21 Rule 22(2) CPC empowers the court to issue execution process without notice even after two years by recording reasons, demonstrating that the legislature never intended to mandate prior notice when execution is brought within two years.

Madhya Pradesh Amendment protects execution orders from invalidity caused by omission of notice

The bench emphasized the specific Madhya Pradesh State Amendment to Order 21 Rule 22 CPC, which categorically provides that no order for execution of a decree shall be invalid solely by reason of the omission to issue notice unless the judgment debtor has sustained substantial injury.

The Court observed that the coordinate bench in Dr. Subhash Chandra Jain had omitted to consider the statutory effect of this State Amendment while creating an equitable carve-out for eviction and possession decrees filed before the expiry of the limitation period for filing an appeal.

Absence of separate procedural classification for eviction decrees under the Code of Civil Procedure

Justice Saraf pointed out that the procedural scheme of the CPC does not provide a differentiated standard or separate provisions for the execution of eviction and possession decrees as opposed to other decrees.

The Court noted that while a decree holder cannot be deprived of the fruits of a decree in the absence of a stay order, judgment debtors who fail to invoke Order 41 Rule 5(2) CPC before the executing court cannot allege procedural invalidity when the executing court executes an operative decree.

Judicial discipline dictates reference to a Larger Bench when coordinate bench views diverge

While firmly disagreeing with the view that executing courts are bound to issue show-cause notices in eviction matters filed within the limitation period of appeal, the Single Judge recognized the limitations of coordinate jurisdiction under established doctrine of precedents.

The Court held that a bench of equal strength cannot deliver a contrary judgment or ignore a binding coordinate bench decision, and the sole appropriate course is to refer the divergent question of law to the Chief Justice for resolution by a Larger Bench.

The High Court accordingly framed the legal question and directed the Principal Registrar (Judicial) to place the matter before the Chief Justice under Chapter IV Rule 8(3) of the High Court of Madhya Pradesh Rules, 2008 for reference to a Larger Bench. In the interim, the Court vacated all earlier interim directions and ordered the parties to maintain strict status quo regarding the condition of the subject premises as it stands.

Date of Decision: October 26, 2026