The Punjab & Haryana High Court has clarified that coercive measures such as arrest in civil execution proceedings cannot be invoked while a restoration application for a dismissed appeal remains pending. This ruling reinforces the principle that procedural fairness must prevail over summary enforcement, particularly when a litigant has not been afforded an opportunity to seek curative relief.
Background & Facts
The Dispute
The respondent, Varun Thakur, filed a civil suit for recovery of Rs. 13,00,000 against the petitioners, Akash Deep Sharma and another. The suit was contested by the defendants, who filed a written statement. Issues were framed, and evidence was led before the learned Civil Judge (Junior Division), Pathankot. The suit was decreed in favor of the respondent by judgment and decree dated 17.07.2019.
Key Facts
- The decree amount was Rs. 13,00,000
- The petitioners filed an appeal against the decree before the District Judge, Pathankot, on 17.07.2019
- An application under Order XLI Rule 5 CPC for stay of execution was filed concurrently
- On 13.10.2023, the District Judge directed the petitioners to deposit Rs. 20 lakh as security, and granted a six-month stay upon compliance
- The appeal was adjourned multiple times, with the next date fixed for 23.01.2024
- The petitioners failed to appear on 23.01.2024, and the appeal was dismissed in default for non-prosecution
- On 25.03.2026, the Executing Court issued warrants of arrest against the petitioners under Order XXI Rule 11 CPC
- Due to non-deposit of subsistence allowance by the respondent, the warrants remained unexecuted
- On 02.04.2026, fresh warrants were ordered
- The petitioners had filed an application for restoration of the dismissed appeal on 24.01.2024 (Annexure P-8), pending before the District Judge with listing on 29.04.2026
Procedural History
- 17.07.2019: Trial Court decreed suit in favor of respondent
- 17.07.2019: Petitioners filed appeal before District Judge (Annexure P-2)
- 17.07.2019: Application under Order XLI Rule 5 CPC filed for stay (Annexure P-3)
- 13.10.2023: District Judge ordered security deposit of Rs. 20 lakh and granted six-month stay (Annexure P-4)
- 07.12.2023: Appeal adjourned to 23.01.2024 (Annexure P-5)
- 23.01.2024: Appeal dismissed in default for non-prosecution (Annexure P-6)
- 24.01.2024: Petitioners filed application for restoration of appeal (Annexure P-8)
- 25.03.2026: Executing Court issued warrants of arrest (Annexure P-10)
- 02.04.2026: Fresh warrants ordered due to non-execution (Annexure P-12)
- 21.04.2026: Civil Revision Petition decided by High Court
Relief Sought
The petitioners sought stay of the arrest warrants issued on 25.03.2026 and 02.04.2026, and direction to refrain from executing arrest until the restoration application is decided.
The Legal Issue
The central question was whether warrants of arrest under Order XXI Rule 11 CPC may be issued against a judgment-debtor who has filed a pending application for restoration of a dismissed appeal, before the appellate court has adjudicated the curative remedy.
Arguments Presented
For the Petitioner
Learned counsel argued that the petitioners had filed a restoration application under Order XLVII Rule 1 CPC before the District Judge, which was pending for hearing on 29.04.2026. He submitted that issuance of arrest warrants while such a curative application is pending violates the principles of natural justice and the doctrine of lis pendens. He relied on the settled principle that execution proceedings cannot proceed in a manner that pre-empts appellate remedies.
For the Respondent
The respondent did not appear or file any written submission. The Court dispensed with issuance of notice to the respondent, noting that the petitioners’ case raised a clear procedural irregularity warranting immediate intervention.
The Court's Analysis
The Court observed that the petitioners had not wilfully neglected their appeal. The dismissal in default occurred due to non-appearance on a single date, and a restoration application was promptly filed within days. The Court emphasized that Order XXI Rule 11 CPC, which permits arrest in execution proceedings, is a drastic remedy and must be exercised with restraint.
"The execution court cannot act as a substitute for the appellate forum when a curative application is pending. To permit arrest in such circumstances would render the remedy of restoration nugatory and defeat the purpose of appellate justice."
The Court noted that the petitioners had complied with the conditions for stay of execution by depositing the required security, and their failure to appear on 23.01.2024 was not shown to be mala fide. The pendency of the restoration application created a legitimate expectation that the appellate court would consider the merits of the appeal. Issuing arrest warrants before the restoration application was decided amounted to a premature and unjustified exercise of coercive power.
The Court further held that the doctrine of lis pendens applies not only to pending suits but also to pending curative applications that seek to revive a dismissed appeal. The execution court’s jurisdiction is subordinate to the appellate court’s authority to restore proceedings.
The Verdict
The petition succeeded. The High Court stayed the warrants of arrest issued on 25.03.2026 and 02.04.2026 until the disposal of the restoration application filed by the petitioners before the District Judge, Pathankot. The stay is effective until the hearing on 29.04.2026 or until the restoration application is decided, whichever is earlier. All pending miscellaneous applications stood disposed of.
What This Means For Similar Cases
Arrest Cannot Precede Restoration of Appeal
- Practitioners must immediately move for stay of execution proceedings when a restoration application under Order XLVII Rule 1 CPC is filed
- Execution courts must verify the pendency of restoration applications before issuing arrest warrants
- Arrest under Order XXI Rule 11 CPC is not automatic upon dismissal of appeal; it requires independent judicial scrutiny
Curative Remedies Trump Summary Enforcement
- The filing of a restoration application creates a legal bar to coercive execution measures
- Courts must prioritize the adjudication of curative remedies over summary enforcement
- Delay in hearing restoration applications cannot justify harsh execution steps against litigants
Procedural Compliance Is Non-Negotiable
- Failure to appear on one date does not equate to abandonment of appeal
- Courts must distinguish between inadvertent non-appearance and deliberate non-prosecution
- Security deposits and prior compliance with stay conditions must be considered before invoking arrest
