The Punjab and Haryana High Court has affirmed that the execution of a decree must be stayed when a restoration application under Order 41 Rule 5 of the Code of Civil Procedure is pending, lest the appellate remedy be rendered infructuous. This ruling reinforces the principle that procedural fairness must prevail over expeditious enforcement.
Background & Facts
The Dispute
The dispute arose from a suit for mandatory injunction filed by the respondent, Meer Khan, seeking removal of encroachment over a common gali share-aam. The Trial Court, by judgment and decree dated 23.12.2021 (Annexure P-3), ruled in favor of the respondent and directed removal of the encroachment. The petitioners, who were defendants in the suit, filed an appeal against this decree.
Key Facts
- The appeal was dismissed in default on 21.11.2023 (Annexure P-8)
- The petitioners filed an application for restoration of the appeal before the District Judge, Jagadhri
- On 16.02.2026, the District Judge imposed costs of Rs. 500 on the respondents for delay in filing a reply to the restoration application (Annexure P-10)
- The restoration application remains pending adjudication as of the date of the High Court’s order
- The respondent initiated execution proceedings under Execution Application No. EXE-14-2022
- On 24.02.2026, the Additional Civil Judge (Senior Division), Bilaspur, dismissed the petitioners’ objections and issued warrants of possession
Procedural History
- 23.12.2021: Trial Court passes decree in favor of respondent Meer Khan
- 21.11.2023: Appeal filed by petitioners dismissed in default
- Date unknown (prior to 16.02.2026): Petitioners file application for restoration under Order 41 Rule 5 CPC
- 16.02.2026: District Judge imposes Rs. 500 costs on respondents for delay in filing reply to restoration application
- 24.02.2026: Executing Court dismisses petitioners’ objections and issues warrants of possession
- 01.04.2026: Revision petition filed before Punjab and Haryana High Court under Article 227
The Parties' Positions
Petitioners (Fakru deceased through LRs): Argued that execution of the decree during pendency of the restoration application would render the appellate remedy nugatory. They emphasized that the restoration application was not frivolous and had been actively pursued, as evidenced by the District Judge’s order imposing costs on the respondents.
Respondents (Meer Khan & others): Did not appear or file any written submissions. The Court noted that notice was dispensed with to avoid unnecessary delay and expenditure.
Relief Sought
The petitioners sought stay of execution proceedings in Execution Application No. EXE-14-2022 until the restoration application is decided, and quashing of the order dated 24.02.2026.
The Legal Issue
The central question was whether the execution of a decree may proceed while a restoration application under Order 41 Rule 5 CPC is pending, and whether such execution would violate the statutory right of appeal.
Arguments Presented
For the Petitioner
The learned counsel contended that the dismissal of the appeal in default does not extinguish the right to seek restoration. The pendency of the restoration application preserves the appellate remedy, and executing the decree during this period would render the entire process infructuous. Reliance was placed on the principle that courts must preserve the status quo when a statutory remedy is actively being pursued.
For the Respondent
No arguments were presented by the respondents, as notice was dispensed with by the Court.
The Court's Analysis
The Court observed that the dismissal of an appeal in default under Order 41 Rule 5 CPC is not a final determination on merits but a procedural lapse. The law provides a clear mechanism for restoration, and the pendency of such an application signifies that the appellant has not abandoned the right to appeal.
"In case, the judgment and decree passed by the Trial Court is implemented by executing the warrants of possession during the pendency of the restoration proceedings, the statutory right of the petitioners will be frustrated and the restoration application/appeal will certainly become infructuous."
The Court emphasized that the execution of a decree is not an absolute right but must yield to the preservation of appellate remedies. The High Court noted that the District Judge had already taken cognizance of the restoration application by imposing costs on the respondents for delay, indicating that the application was not frivolous or dilatory.
The Court further held that allowing execution to proceed would create irreparable prejudice, as the appellate forum may ultimately restore the appeal and reverse the decree. The balance of convenience and the interest of justice clearly favored a stay.
The Verdict
The revision petition was allowed. The Court stayed all execution proceedings in Execution Application No. EXE-14-2022 until the restoration application under Order 41 Rule 5 CPC is decided by the District Judge, Jagadhri. The Appellate Court was directed to decide the restoration application at the earliest. All pending miscellaneous applications were disposed of.
What This Means For Similar Cases
Execution Cannot Preempt Restoration
- Practitioners must immediately apply for stay of execution when a restoration application under Order 41 Rule 5 CPC is pending
- Courts are obligated to recognize that dismissal in default does not extinguish appellate rights
- Execution warrants issued during pendency of restoration are liable to be vacated
Costs Imposed Are Indicators of Merit
- When a court imposes costs on the respondent for delay in opposing restoration, it signals judicial recognition of the application’s seriousness
- This can be leveraged in stay applications to demonstrate that the restoration is not a mere delay tactic
- Such orders strengthen the argument for preserving the status quo
Procedural Fairness Over Expediency
- The judgment reaffirms that procedural justice under the CPC takes precedence over swift enforcement
- Lawyers should routinely seek interim stays in execution matters where appeals are pending, even if dismissed in default
- This ruling provides a clear precedent to oppose premature execution in civil suits involving property rights
