1. Heard Mr. Zaveri appearing for the Petitioners.

2. In this Petition, the challenge is to the order passed by the Executing Court, thereby directing to issue notice to the Judgment Debtors, though an Execution Application was filed within a period of two years from the date of the decree.

3. Mr. Zaveri appearing for the Petitioners would submit that the decision of this Court in Ulhas Pandharinath Chodankar [Writ Petition No. 254 of 2016 decided on 10.03.2016] was cited before the Trial Court, however, inspite of the dictum of this Court in the said judgment, notice was issued instead of issuing warrant of possession.

4. Since the matter revolved upon the provisions of law under Order XXI of CPC in connection with the procedure to be followed by the Trial Court while executing a decree under Order XXI Rule 22 of CPC, no notice is required to be issued to the Respondents, since the order of issuance of notice is itself challenged by the Petitioners.

5. Heard the learned Counsel for the Petitioners finally. Rule. Rule is made returnable forthwith.

6. Mr. Zaveri appearing for the Petitioners, strongly contended that the Execution Application was filed within a period of two years from the date of judgment and decree. However, the learned Executing Court instead of issuing warrants of possession, issued notices to the Judgment Debtors. He submits that this Court in the case of Ulhas Chodankar (supra) has clearly laid down that when the Execution Application is filed within a period of two years, the Executing Court is not required to issue notice and the decree would be executed by issuing necessary order/warrant.

7. The observations of this Court in Ulhas Chodankar (supra) are found in paragraph 6, which reads thus:

“6. In the instant case, the decree that is being sought to be executed through the executing Court is passed on 16.01.2014. The execution application has been filed in December, 2015, that is, before expiry of period of two years from the date of decree. Under Order 21 Rule 22 C.P.C., when an application for execution of decree is made after expiry of two years from the date of decree, then only the executing Court is required to issue a notice to the judgment debtor for requiring him to show cause as to why the decree should not be executed against him, and otherwise not. In other words, when the execution is sought before expiry of period of two years from the date of the decree, a reverse situation would be true thereby meaning that no mandatory duty would be cast upon the Court to issue a show cause notice to the judgment debtor. It would also mean that the executing Court would have the power to execute the decree forthwith without issuing any notice to the judgment debtor. There is no provision in Order 21 Rule 22 conferring any discretionary power upon the executing Court to issue a show cause notice to the judgment debtor even in a case where the execution is sought for within two years from the date of the decree. If no such power has been conferred by any express provision of law, I do not understand as to how the learned Senior Civil Judge could read such a power as residing in him in the scheme of the provisions of Order 21 C.P.C. Learned Senior Civil Judge has also accepted the fact that execution has been sought within two years from the date of the decree. Even in the case of Inocencio Fernandes (supra), the need for executing the decree forthwith, in a case where the execution application has been made within the stipulated time, it was one year at the time when the judgment was rendered, has been underlined. However it appears that learned Senior Civil Judge has not considered the ratio of this case in a proper perspective. Therefore, the order impugned herein would have to be termed as an order passed in breach of express provisions of law and cannot be sustained.”

8. The matter in hand is identical to the case of Ulhas Chodankar (supra). Even though this decision was cited before the Executing Court, it is surprising that the same ratio has not been followed though the decision and the dictum is binding on the Trial Court. The reason for not following the ratio laid down is quite surprising. The Trial Court observed that the Decree Holder failed to inform that the Appeal was pending.

9. Mr. Zaveri pointed out that arguments were heard and at that time, it was informed that though the Appeal is pending, no stay has been granted by the first Appellate Court. Mr. Zaveri would then submit that in the Application for execution, the Petitioners have specifically mentioned in clause (4) that a Rent Appeal is filed bearing No. 9/2022 and while arguing the matter, it was informed to the Executing Court that no stay has been granted by the first Appellate Court to such decree.

10. The learned Executing Court in the impugned order dated 15.04.2023 observed that the Decree Holders failed to inform the fact that the Appeal is pending. These observations are prima facie incorrect and against the record itself.

11. Mr. Zaveri then submitted that against such observations, a Review was filed, which was decided vide order dated 17.08.2023. The learned Executing Court corrected the mistake in its earlier order. However, refused to issue a warrant of possession and directed that notice be issued to the Judgment Debtors.

12. The provision of Order XXI Rule 11(2) of CPC deals with written Application to be filed for executing the decree by giving all the details. The powers of the Executing Court and the procedure to be followed on receiving a written Application are prescribed under Order XXI Rule 17 of CPC. Order XXI Rule 22 of CPC mandates notice to be issued in case an Application is filed after a period of two years from the date of decree. The proviso appended to it specifically says that no such notice shall be necessary in consequence of more than two years having elapsed between the date of the decree and the Execution Application, if the Application is made within two years from the date of last order against the party against whom the execution is applied for. The wording in the said proviso shows that it is mandatory for the Court to comply with the said provisions when an Application is filed within a period of two years from the date of the last order/decree. The same aspect has been considered by this Court in the case of Ulhas Chodankar (supra) and there is no need to take any other view as the provision itself is very clear.

13. In the present matter, the judgment and decree is dated 20.05.2022. No doubt, the Judgment Debtors filed an Appeal before the first Appellate Court, which is registered as Rent Appeal No. 9/2022, however, according to the Decree Holders/ Petitioners, there is no stay granted to such decree. The Petitioners filed execution proceedings on 13.10.2022 i.e. within a period of five months of the date of judgment and decree. Thus, the Executing Court was duty bound to comply with the provisions of Order XXI Rule 22 of CPC and as discussed by this Court in the case of Ulhas Chodankar (supra). The pendency of the Appeal will not operate as a stay, which is the settled proposition of law.

14. In the circumstances and as discussed above, the impugned orders suffer from inappropriate exercise of powers and therefore, this Court while exercising supervisory jurisdiction under Article 227 of the Constitution of India is duty bound to rectify it. Accordingly, the impugned orders need to be quashed and set aside and the matter needs to be remanded to the learned Executing Court to consider the above aspect and pass necessary orders. It is needless to state that the Decree Holders be heard before passing such orders.

15. Rule is made absolute in the above terms.

16. The Petition stands disposed of.