Page No.# 1/7 vs Syed Nawab Hussain And 2 Ors
2022 Latest Caselaw 4799 Gua

                                                          Page No.# 1/7

GAHC010008292015




                              THE GAUHATI HIGH COURT
   (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                                Case No. : CRP/43/2015

            MD. ALKASH ALI and ANR.


            2: MD. ATAWUR RAHMAN
             BOTH ARE S/O LT. MOHOR ALI
             R/O PAICHARA
             MOUZA- PUB BANBHAG
             P.S. GHOGRAPAR
             DIST- NALBAR

            VERSUS

            SYED NAWAB HUSSAIN and 2 ORS


            2:SYED KHARSHED ALI
             BOTH ARE S/O LT. SYED ABDUL MAZID

            3:MARZINA AHMED
             MINOR
             REP. BY THE LEGAL GUARDIAN
             HER ELDER BROTHER SYED NAWAB HUSSAIN
            ALL ARE R/O KAYAKUCHI
             MOUZA- PUB BONBHAG
             P.S. GHOGRAPAR
             DIST- NALBAR

Advocate for the Petitioner   : MR.D CHOUDHURY

Advocate for the Respondent : MR.N D BHUYANR-1

Page No.# 2/7

BEFORE

Hon'ble MR. JUSTICE SANJAY KUMAR MEDHI

Advocates for the petitioner : Shri D. Chouodhury

Advocates for the respondents : Shri PS Deka, Sr. Adv.

                                       Shri B. Bhagawati

      Date of hearing     :      15.11.2022
      Date of Judgment     :     06.12.2022


                                  Judgment & Order

The present petition has been filed under Section 115 of the Code of Civil Procedure, 1908 read with Article 227 of the Constitution of India by which an order dated 05.01.2015 passed by the learned Munsiff No. 1, Nalbari in Title Execution No. 04/2014 has been put to challenge. By the aforesaid order, the Nazir was directed to go ahead with the execution and submit Report accordingly.

2. I have heard Shri D. Choudhury, learned counsel for the petitioner. I have also heard Shri PS Deka, learned Senior Counsel assisted by Shri B. Bhagawati, learned counsel for the respondent. The materials placed before this Court have been carefully examined.

3. The petitioner is the defendant and Judgment Debtor whereas the respondent is the plaintiff / Decree Holder. The impugned order dated 05.01.2015 has been filed in Title Execution No. 04/2014 on a petition filed by the Decree Holder.

4. Before going to the issue which has arisen for determination in this case, certain background facts of the case may be put down as follows.

5. The respondent as plaintiff had instituted Title Suit No. 49/1995 for declaration of tenancy right and for confirmation of possession over the suit land along with Page No.# 3/7

injunction. The said suit however was dismissed vide judgment dated 23.06.1999 and decree dated 30.06.1999. Which however was the subject matter in an appeal before the learned Civil Judge (Sr. Division), Nalbari which was registered as TA No. 7/1999. The respondent thereafter preferred RSA before this Court which was registered as RSA/4/2000 which was however allowed vide an order dated 15.02.2008. This Court in paragraph 16 of the aforesaid judgment has held as follows:

"16. Accordingly, I am of the opinion that this second appeal is liable to be entertained and the impugned judgment and decree passed by the trial Court and the First Appellate Court are liable to be set aside and quashed. Ordered accordingly. Consequently, the decree sought by the plaintiffs in T.S. No. 49/95 be granted."

6. In the petition for execution, the Decree Holder has prayed for execution of the decree which was for declaration of right, title, interest, khas possession and injunction and the schedule of the decreed land was also given.

7. To the aforesaid application, the Judgment Debtor / petitioner had filed an objection in which it was stated that there was no prayer for decree of khas possession not even the decree of confirmation of possession of the suit land. It was also submitted that the suit land was all along in the possession of the Judgment Debtor and therefore, the decree was sought to be executed in a manner which is not permitted by law. It was submitted that the Executing Court cannot go behind the decree.

8. The petition viz. namely, T.Ex. No. 4/2014 was heard and the order dated 05.01.2015 was passed by the learned Munsiff No. 1, Nalbari. The learned Court had held that the judgment and decree passed by the Trial Court as well as the First Appellate Court were set aside and quashed by this Court and granted the decree sought by the plaintiff. The learned Court also observed that the Title Suit No. 49/1995 was filed by the plaintiff for declaration of tenancy rights, for confirmation of Page No.# 4/7

possession over the suit land along with injunction. Therefore, in terms of the judgment of the High Court dated 06.01.2012, the Nazir of the Court was directed to go for execution.

9. Shri D. Choudhury, learned counsel for the petitioners has strenuously argued that an Executing Court cannot go behind the decree and the relief being for confirmation of possession, in the name of execution of the decree, the Judgment Debtor cannot be dispossessed. In other words, it is submitted that in absence of a prayer for recovery of khas possession of the suit land, the Executing Court cannot go to that extent of the matter.

10. In support of his submissions, Shri Choudhury, learned counsel has placed before this Court a judgment of the Hon'ble Andhra Pradesh High Court dated 13.10.2009 passed in OS No. 2034/2005. In the said case, it has been laid down that alternative relief can be granted only when the defendant in the suit does not dispute the facts that are relevant for such a relief and that the issue has been put at trial.

11. Per contra, Shri PS Deka, learned Senior Counsel for the respondent plaintiff / Decree Holder submits that the present is nothing but a means to delay the proceedings further. He submits that the very foundation of the case projected by the petitioner is erroneous.

12. To substantiate the aforesaid submission, the learned Senior Counsel for the respondent has straight away referred to the plaint, more specifically the prayers made therein. He submits that there is a specific prayer that in the event of dispossession of the plaintiffs, khas possession may be decreed. For ready reference, the relief prayed for in the suit is extracted hereinbelow-

"(i) Decree for declaration of plaintiff's right, title, interest and confirmation of possession over the schedule(d) land.

(ii) In the event of dispossession of the plaintiffs by using force, khas Page No.# 5/7

possession may (be) decreed.

(iii) The defendants be restrained from entering into the schedule(d) land in future to ensure peaceful possession of the plaintiff and for this purpose permanent injunction be granted against the defendant.

(iv) In the event of proforma defendant contest the suit they will be treated as main defendant for granting decree against them.

(v) The cost of the suit.

(vi) Any other relief what the plaintiff is entitled to may be decreed."

13. The Senior Counsel for the respondent accordingly submits that after reversal of the concurrent judgments of the Trial Court as well as the First Appellate Court by this High Court vide judgment and order dated 15.02.2008, it is the said judgment based upon which the decree dated 23.12.2009 has been drawn would hold the field. It is submitted that this Court in no uncertain terms has laid down that the decree sought by the plaintiff in Title Suit No. 14/95 be granted. It is submitted that under such facts and circumstances, there is hardly any scope to raise objection at the time of execution of the decree.

14. The rival submissions of the learned counsel for the parties have been duly considered and the materials placed before this Court have been carefully examined.

15. There is no dispute to the proposition of law advanced on behalf of the petitioner that an Executing Court cannot traverse beyond the decree and as an Executing Court its duty is only to ensure that the decree as it stands is executed. Further, there is no scope of any adjudication on the inter se merits of the parties as such adjudication has already been brought to a logical conclusion by the judgment and decree which has been put to execution.

16. In fact, in support of the aforesaid proposition, there are catena of decisions including a recent decision of Sneh Lata Goel v. Pushplata reported in (2019) 3 Page No.# 6/7

SCC 594. Wherein the Hon'ble Supreme Court after taking note of the landmark case of Vasudev Dhanjibhai Modi v. Rajabhai Abdul Rehman reported in (1970) 1 SCC 670 has been laid down as follows:

"23. The objection which was raised in execution in the present case did not relate to the subject-matter of the suit. It was an objection to territorial jurisdiction which does not travel to the root of or to the inherent lack of jurisdiction of a civil court to entertain the suit. An executing court cannot go behind the decree and must execute the decree as it stands. In Vasudev Dhanjibhai Modi v. Rajabhai Abdul Rehman, the petitioner filed a suit in the Court of Small Causes, Ahmedabad for ejecting the defendant tenant. The suit was eventually decreed in his favour by this Court. During execution proceedings, the defendant tenant raised an objection that the Court of Small Causes had no jurisdiction to entertain the suit and its decree was a nullity. The court executing the decree and the Court of Small Causes rejected the contention. The High Court reversed the order of the Court of Small Causes and dismissed the petition for execution. On appeal to this Court, a three- Judge Bench of this Court, reversed the judgment of the High Court and held thus: (SCC pp. 672-73, paras 6 & 8) "6. A court executing a decree cannot go behind the decree: between the parties or their representatives it must take the decree according to its tenor, and cannot entertain any objection that the decree was incorrect in law or on facts. Until it is set aside by an appropriate proceeding in appeal or revision, a decree even if it be erroneous is still binding between the parties.

* * *

8. ... If the decree is on the face of the record without jurisdiction and the question does not relate to the territorial jurisdiction or under Section 11 of the Suits Valuation Act, objection to the jurisdiction of the court to make the decree may be raised; where it is necessary to investigate facts in order to determine whether the court which had passed the decree had no jurisdiction to entertain Page No.# 7/7

and try the suit, the objection cannot be raised in the execution proceeding."

17. The situation in the instant case has to be examined from the relief claimed in the suit. A bare perusal of the said relief would show that a prayer for khas possession was also made in the event of dispossession of the plaintiffs and the entire suit was structured on the impending threat upon the plaintiffs to encroach upon the suit land. This Court has further noticed that the pleadings also include statements that one such attempt to dispose was already made on 25.07.1995.

18. In view of the aforesaid facts and circumstances, this Court is of the considered opinion that there is absolutely no scope to challenge the order dated 05.01.2015 by which the learned Court of the Munsiff No. 1, Nalbari had directed the Nazir to execute the decree as this Court while allowing RSA No. 04/2000 had clearly directed that the decree sought for by the plaintiffs in Title Suit No. 49/95 be granted.

19. Accordingly, the instant revision petition is dismissed.

20. No order as to cost.

JUDGE

Comparing Assistant