Page No.# 1/11 GAHC010164672022 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : CRP/74/2024 ON THE DEATH OF LATE DHAJENDRA CH. SINGHA HIS LEGAL HEIRS AND 2 ORS ASSAM 1.1: SRI DWIP NARAYAN SINGHA S/O LATE DHAJENDRA CH. SINGHA AGED-63 YEARS R/O VILL-JOGIGHOPA KAYAPATTI P.O.-JOGIGHOPA P.S.-JOGIGHOPA DIST-BONGAIGAON ASSAM-783382 1.2: SMTI. USHA SINGHA D/O LATE DHAJENDRA CH. SINGHA AGED-61 YEARS R/O VILL-JOGIGHOPA KAYAPATTI P.O.-JOGIGHOPA P.S.-JOGIGHOPA DIST-BONGAIGAON ASSAM-783382 1.3: SMTI. BHABANI SINGHA D/O LATE DHAJENDRA CH. SINGHA AGED-59 YEARS R/O VILL-JOGIGHOPA KAYAPATTI P.O.-JOGIGHOPA P.S.-JOGIGHOPA DIST-BONGAIGAON ASSAM-783382 2: ON THE DEATH OF LATE ATUL CH. SINGHA HIS LEGAL HEIRS ASSAM Page No.# 2/11 2.1: SRI PABITRA KR. SINGHA S/O LATE ATUL CH. SINGHA AGED-58 YEARS R/O VILL-JOGIGHOPA KAYAPATTI P.O.-JOGIGHOPA P.S.-JOGIGHOPA DIST-BONGAIGAON ASSAM-783382 2.2: SRI RATHINDRA KR. SINGHA S/O LATE ATUL CH. SINGHA AGED-56 YEARS R/O VILL-JOGIGHOPA KAYAPATTI P.O.-JOGIGHOPA P.S.-JOGIGHOPA DIST-BONGAIGAON ASSAM-783382 2.3: SMTI. CHAYA SINGHA D/O LATE ATUL CH. SINGHA AND W/O SRI SUSHEN CH. BEPARI AGED-54 YEARS R/O VILL-UZANPETELA PART-I P.O.-UZANPETELA P.S.-TAMARHAT DIST-DHUBRI ASSAM 3: ON THE DEATH OF LATE NARENDRA KR. SINGHA HIS LEGAL HEIRS ASSAM 3.1: SMTI. KANAKLATA SINGHA W/O LATE NARENDRA KR. SINGHA AGED-50 YEARS R/O VILL-JOGIGHOPA KAYAPATTI P.O.-JOGIGHOPA P.S.-JOGIGHOPA DIST-BONGAIGAON ASSAM-783382 3.2: SRI AMITENDRA SINGHA S/O LATE NARENDRA KR. SINGHA AGED-25 YEARS R/O VILL-JOGIGHOPA KAYAPATTI P.O.-JOGIGHOPA P.S.-JOGIGHOPA DIST-BONGAIGAON ASSAM-78338 Page No.# 3/11 VERSUS MD. MOTIOR RAHMAN AND 2 ORS S/O LATE TABILUDDIN AHMED, R/O VILL-JOGIGHOPA NATUN BASTI, P.O.- JOGIGHOPA, P.S.-JOGIGHOPA, DIST-BONGAIGAON, ASSAM-783382 2:MD. RUBUL AMIN HAQUE S/O LATE TABILUDDIN AHMED R/O VILL-JOGIGHOPA NATUN BASTI P.O.-JOGIGHOPA P.S.-JOGIGHOPA DIST-BONGAIGAON ASSAM-783382 3:MOSHT. SABEJAN BEWA W/O LATE TABILUDDIN AHMED R/O VILL-JOGIGHOPA NATUN BASTI P.O.-JOGIGHOPA P.S.-JOGIGHOPA DIST-BONGAIGAON ASSAM-78338 Advocate for the Petitioner : MR D C NATH, MR. R GHOSH (P-1.2,1.3,2.1,2.2,2.3),R MANDAL(P-1.2,1.3,2.1,2.2,2.3),MS. N PODDAR(P-1.2,1.3,2.1,2.2,2.3),S K PODDAR(P- 1.2,1.3,2.1,2.2,2.3),MR. C SHARMA,MR. S K SAHARIAH Advocate for the Respondent : , BEFORE HONOURABLE MR. JUSTICE MRIDUL KUMAR KALITA ORDER Date : 29.01.2026 1. Heard Mr. S. K. Poddar, the learned counsel for the petitioners. Also heard Mr. A. C. Sarma, the learned senior counsel assisted by Mr. J. Bhardwaj, the learned counsel for the respondent Nos. 1 to 3. Also heard Ms. R. Choudhury, the learned counsel for the respondent No. 4, whose name has already been struck out from the array of parties in this Civil Revision Petition. Page No.# 4/11 2. This Civil Revision Petition under Section 115 of the Code of Civil Procedure, 1908 has been filed by the petitioners, impugning the order dated 04.05.2022 passed by the Court of learned Munsiff, North Salmara, Abhayapuri in Title Execution Case No.04/2016, whereby the Executing Court had issued precepts to the Circle Officer to do the needful as per the judgment and decree passed in Title Suit No. 28/1989 in presence of the decree holder and the Nazir of the Court. 3. The facts relevant for consideration of the instant Criminal Revision Petition, in brief, are that the predecessors-in-interest of the present petitioners had filed a suit bearing Title Suit No. 28/1989 before the Court of learned Munsiff, North Salmara, Abhayapuri, as plaintiffs, for declaration of their right, title, and interest as well as for permanent injunction against the predecessor-in-interest of the respondents. In the aforesaid suit, the predecessor-in- interest of the present petitioners, amongst other reliefs, had sought for a declaration that the Sale Deeds No. 885, 886 and 887 dated 22.11.1988 are void and ineffective. They also claimed permanent injunction for restraining the defendants and their workmen, servants, agentsetc. from entering into the suit land and from disturbing the possession of plaintiffs over the suit land. 4. The predecessor-in-interest of the present respondents contested the suit by filing written statements, however, no counterclaim was filed by them in the aforesaid suit. 5. The Court of learned Munsiff, North Salmara, Abhayapuri after hearing the parties and after considering the evidence on record, by Page No.# 5/11 its judgment and decree dated 08.05.1995, decreed the suit in favor of the plaintiffs (predecessor-in- interest of the present petitioners) and granted the relief as sought for by the plaintiffs in the plaint. 6. Being aggrieved by the aforesaid judgment of the Trial Court, the respondent Nos. 1 to 4 as appellants preferred an appeal before the Court of learned Civil Judge, Senior Division, Bongaigaon, which was registered as Title Appeal No.03/1999. Thereafter, by its judgment and decree dated 04.02.2000, passed in Title Appeal No. 03/1999, the Court of learned Civil Judge, Senior Division, Bongaigaon, dismissed the suit of the plaintiffs. 7. While allowing the appeal and dismissing the Suit of the plaintiffs, the First Appellate Court made following observation in its judgment and decree dated 04.02.2000: “the transfer of land in favor of defendant No. 1,2, and 3, and Sale Deed No. 885,886,887 dated 22.11.1988 are held to be perfectly valid, legal and operative in law. If the sale deeds by which the lands were sold to the defendant No. 1, 2, and 3 are found to be inexecutable for being the land covered by these sale deeds to be in actual possession by the plaintiffs/respondents having their residential house thereon, the defendant No. 4 shall be at liberty to execute fresh sale deed as she shall have share of land elsewhere. It is further held that if need be, and if so advised, the defendant No.4 may approach the revenue authority for partition of her entitled share of land.” 8. Though, there was no counterclaim by the defendants/ present Page No.# 6/11 respondent, however, claiming themselves to be the decree holders, the respondents initiated an execution proceeding which was registered as title Execution Case No. 4/2016, wherein a prayer was made to direct the A.S.O. Boitamari Revenue Circle to draw a sketch map of the entire land covered by Dag No. 90, 91, 93, 94, and to deliver possession of lands mentioned in thesale deeds to the decree holders. 9. The present petitioners preferred a Regular Second Appeal, which was registered as RSA No. 89/2001, impugning the judgment and decree dated 04.02.2000 passed in Title Appeal No. 03/1999 passed by the Court of learned Civil Judge, Bongaigaon. The said appeal was dismissed for default on 15.05.2013. Thereafter, the petitioners filed an Interlocutory Application for readmission of the appeal. The aforesaid Interlocutory Application was also dismissed for default. The petitioner, thereafter, again filed another restoration application for restoration of the I.A. (Civil) No. 4126/2019. 10. As no counterclaim was filed by the respondents as defended in the Title Suit No. 28/1989, no relief could have been granted by the First Appellate Court to the respondent. As such, the present petitioners had filed written objections before the Executing Court in Title Execution Case No.04/2016, claiming the decree to be in executable and non-est in the eye of law. However, by the impugned order dated 04.05.2022, the Executing Court, i.e., the Court of learned Munsiff, North Salmara, Abhayapuri issued precepts to the Circle Officer for doing the needful in terms of the decree and, as such, the instant Civil Revision Petition has been filed by the petitioners. Page No.# 7/11 11. Mr. S. K. Poddar, the learned counsel for the petitioners has submitted that the Executing Court of learned Munsiff, North Salmara, Abhayapuri has committed gross illegality and irregularity in passing the impugned order of issuing the precept to the Circle Officer in spite of the fact that the decree passed in Title Appeal No. 03/1999 is inexecutable decree. He submits that by the aforesaid judgment and decree it is only the suit of the plaintiff, i.e., the present petitioners, which was dismissed and it cannot be treated as granting any relief to the respondents/defendants in absence of any counter claim. 12. The learned counsel for the petitioners has submitted that since the observations made in the judgment and decree passed by the First Appellate Court is without any counterclaim, such a decree is non- est in the eye of law and the Executing Court should not have issued the precepts without there being any direction to do so by going beyond the decree. 13. He further submits that there is no direction in the judgment of the First Appellate Court or in the decree prepared thereafter regarding recovery of possession from the present petitioners or any direction toany Revenue Authority to do anything. Hence, no execution of the aforesaid decree was called for. He submits that directing execution of a non-executable decree violates the judicial principles as enshrined in the Code of Civil Procedure, 1908 as well as in the Civil Rulesand Orders notified by this Court. In support of his submission, the learned counsel for the petitioners has cited the ruling of a Coordinate Bench of this Court in the case of “Smt. Dineshwari Page No.# 8/11 Kalvar Vs. On Death of Shri Ganesh Chandra Dutta his Legal Heirs” reported in 2025 SUPREME (GAU) 1250. 14. On the other hand, Mr. A. C. Sarma, the learned senior counsel for respondent Nos. 1, 2 and 3 has submitted that there is no illegality or irregularity in the impugned order passed by the Executing Court. He submits that the Executing Court is bound by the decree passed by the Appellate Court and it cannot go beyond the decree. He submits that the First Appellate Court has, in its judgment, categorically observed that the sale deeds executed by the respondent No. 4 in favor of the other respondents are valid and therefore, the present respondents, who are the successor-in- interest of the original respondents are entitled to get possession of the land in respect of which the respective sale deeds were executed. He submits that the Appellate Court also observed regarding partition of the land and, therefore, the Executing Court was right in issuing precept to the Circle Officer for doing the needful for executing the decree passed by the First Appellate Court. 15. He further submits that until and unless the decree in judgment is set aside in an appropriate proceeding in appeal or revision, a decree even if it is erroneous is still binding on both the parties, and in support of his submission he has cited a ruling of the Apex Court in the case of “Vasudev Dhanjibhai Modi Vs. Rajabhai Abdul Rehman and Others” reported in (1970) 1 SCC 670. He, therefore, prays for dismissing the instant Civil Revision Petition. 16. On the other hand, Ms. R. Choudhury, the learned counsel for the respondent No. 4 has submitted that the instant Civil Revision Page No.# 9/11 Petition is not maintainable in view of the proviso to Section 115 (1) of the Code of Civil Procedure, 1908. She also submits that as the Respondent No. 4 has not been made party in the present Revision Petition by striking out his name, this revision petition is bad for non- joinder of necessary parties. She submits that as by the judgment and decree of the First Appellate Court, Respondent No. 4 was also directed to execute fresh sale deed, if the sale deeds, which are already executed in favour of Respondents are found to be inexecutable, further the Respondent No. 4 was also directed to approach Revenue Authority seeking partition of her share in the land, hence, the Respondent No. 4 is necessary party in the instant Revision Petition and by striking out of the name of Respondent No. 4, an incurable defect has been caused, which is fatal to the present Revision Petition. 17. Replying to the submissions made by the learned counsel for the respondent No. 4, the learned counsel for the petitioner has submitted that since the Respondent No. 4 is not a party in the execution proceeding, i.e., Title Execution Case No. 04/2016 pending before the Court of learned Munsiff, North Salmara, Abhayapuri, hence, the petitioners prayed for striking out the names of Respondent No. 4 as there is no necessity of the presence of Respondent No. 4 for deciding the instant Revision Petition. Accordingly, this Court by its order dated 12.11.2023 has strike out the name of Respondent No. 4. He further submits that the Revision Petition is also not hit by Proviso to Section 115 (1) of the Code of Civil Procedure, 1908as had the impugned order been made in favor Page No.# 10/11 of the petitioner, it would have finally disposed of the execution proceeding. 18. I have considered the submissions made by the learned counsel for both sides and have gone through the materials available on record. 19. It is a settled principle of law that in a suit which is dismissed and where there is no counterclaim filed by the defendants, no relief except that of dismissal of suit may be granted to the defendants.In a suit which is dismissed, there cannot be an execution proceeding initiated by the defendant for executing the decree in absence of any counterclaim filed by such a defendant. 20. In the instant case, the First Appellate Court by its judgment and decree has dismissed the suit of the plaintiff and reversed the decree passed by the Trial Court whereby the Sale Deed No. 885, 886 and 887 were held to be inoperative and not binding. While doing so, the First Appellate Court only observed that the said sale deeds were perfectly valid sale deeds. However, no direction was issued for recovery of possession on the basis of said sale deed as there was no prayer for the same by the defendant sides. 21. The First Appellate Court in its judgment and decree only made observations that if the sale deeds are found to be inexecutable, the defendant No. 4 shall have option to execute fresh sale deed in respect of her share of land elsewhere, this observation by any stretch of imagination does not make the petitioners liable to be evicted from the land in absence of any direction for recovery of their possession. In absence of any direction issued against the Page No.# 11/11 present respondents, there was nothing to be executed in this case by the executing court. 22. Further, the First Appellate Court in its judgment and decree only made observations regarding giving an option to the respondent No. 4 to approach the Revenue Authority seeking partition of her entitled share of land. That too only if she is advised to do so. However, this does not mean that the decree by which the suit was dismissed is an executable decree as no directions were issued against the plaintiffs or for issuance of any precepts. 23. The Executing Court by issuing precepts to the Circle Officer, for which no directions was there in the judgment or decree of the First Appellate Court, it has gone beyond the decree, therefore, the impugned order is liable to be set aside. 24. In view of the discussions made and the reasons stated in the foregoing paragraphs, the impugned order dated 04.05.2022 passed by the Court of learned Munsiff, North Salmara, Abhayapuri in Title Execution Case No. 04/2016 is hereby set aside. 25. With the above observation, this Revision Petition is allowed and accordingly disposed of. JUDGE Comparing Assistant