Page No.# 1/8 GAHC010098192025 undefined THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : CRP/59/2025 MD. TAFIJUDDIN ALI S/O- LATE RAMJAN ALI, R/O- SIJUBARI, P.S. DISPUR, PRESENTLY RESIDING AT HATIGAON, DIST. KAMRUP METRO, ASSAM VERSUS MD. MASHER ALI AHMED S/O- HARMUJ ALI AHMED, R/O- FRIEND PATH, HATIGAON, DISPUR, GUWAHATI-06, DIST. KAMRUP METRO, ASSAM Advocate for the Petitioner : MR. A GANGULY, MR. A DUTTA,MR. A DHANUKA Advocate for the Respondent : , BEFORE HONOURABLE MR. JUSTICE ROBIN PHUKAN ORDER Date : 19.05.2025 Heard Mr. A. Ganguly, learned counsel for the petitioner. 2. In this petition, under Section 115 of the Code of Civil Procedure, the petitioner has put to challenge the correctness of otherwise of the order dated Page No.# 2/8 30.04.2025, passed in Title Execution Case No. 22/2024, arising out of Title Suit No. 136/2000, by the learned Civil Judge (Jr. Div) No.2, Kamrup (M), Guwahati. 3. It is to be noted here that vide impugned order dated 30.04.2025, the learned Executing Court has dismissed the petition No. 1018/2025, filed by the petitioner under Section 47 CPC. 4. Mr. Ganguly, learned counsel for the petitioner submits that while the Title Execution Case No. 22/2024, arising out of Title Suit No. 136/2000 was pending before the learned Executing Court, then the petitioner herein filed one petition being petition No. 1018/2025, under Section 47 of the CPC, questioning the very executability of the decree. But, the learned Executing Court without proper consideration of the objection raised in the aforementioned petition as to the executability of the Judgment and Decree dated 14.12.2004, had failed to consider the documents exhibited by the respondent/decree holder, which show that the suit land is in the name of another person, namely, Md. Abdul Kayum, who has been arraigned as pro-forma defendant in Title Suit No. 136/2000, and the said co-pattadar has already expired on 19.06.1994 and that the measurement of the suit land as per the decree is more than what actually exist in the revenue record and as such, the impugned order dated 30.04.2025, so passed by the Executing Court is illegal and arbitrary and on such count, the same is liable to be set aside and quashed and the matter may be remanded back to the learned Executing Court to deal with the issues raised by the petitioner herein. Mr. Ganguly has also referred to a decision of Hon’ble Supreme Court in Gurnam Singh (D) Thr. Lrs Vs. Gurbachan Kaur(D) by Lrs., reported in (2017) 13 SCC 414, to contend that the decree is a nullity and as such, it is non-executable. Page No.# 3/8 5. Having heard the submission of Mr. Ganguly, learned counsel for the petitioner, I have carefully gone through the petition and the documents placed on record and also perused the petition No. 1018/2025 and the impugned order dated 30.04.2025 and the decision referred by him. 6. Before dealing with the contention so raised in this petition, it would be in the interest of justice to understand the scope and ambit of Section 47 CPC. Section 47 of CPC read as under:- "47. Questions to be determined by the Court executing decree:- (1) All questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the Court executing the decree and not by a separate suit. (2) Where a question arises as to whether any person is or is not the representative of a party, such question shall, for the purposes of this section, be determined by the Court. [Explanation I.-For the purposes of this section, a plaintiff whose suit has been dismissed and a defendant against whom a suit has been dismissed are parties to the suit. Explanation II.- (a) For the purposes of this section, a purchaser of property at a sale in execution of a decree shall be deemed to be a party to the suit in which the decree is passed; and (b) all questions relating to the delivery of possession of such property to such purchaser or his representative shall be deemed to be questions Page No.# 4/8 relating to the execution, discharge or satisfaction of the decree within the meaning of this section.] 7. It is also to be noted here that while dealing with the scope and ambit of Section 47 CPC, in the case of Dhurandhar Prasad Singh Vs. Jai Prakash University and Ors, reported in AIR 2001 SCC 2552, Hon’ble Supreme Court has held that the exercise of powers under Section 47 is microscopic and lies in a very narrow inspection hole. Thus, it is clear that the Executing Court can allow objection under Section 47 of the Code as to the executability of the decree, if it is found that the same is void ab initio and nullity, apart from the ground that decree is not capable of execution under law, either because the same was passed in ignorance of such a provision of law or the law was promulgated making a decree inexecutable after its passing. 8. In the case in hand, the petitioner, who is the judgment debtor, in his petition under Section 47 of the CPC, has stated that the decree holder, vide registered Sale Deed No. 5168/1997, claimed that he had purchased the suit land, measuring 2 Kathas 10 Lessas from one Mina Begum. In the said sale deed, boundaries of the suit land was described, but, the measurement in terms ‘Are’ is not mentioned. It is also stated in the said petition that in the periodic patta, Ext.2, the name of both Md. Abdul Kayum and the decree holder Md. Masher Ali Ahmed appears and the area of land in ‘Are’ is shown as 6.07 Are, and the said Are is about 2 kathas 5 Lechas, further, he has also stated that the recent jamabandi for the suit land shows the names of both Abdul Kayum and Md. Masher Ali Ahmed in respect of the suit land and it was shown that the suit land is measuring 2 Kathas 5.34 Lechas and not 2 Kathas 10 Lechas and under the above mentioned facts and circumstances, the petitioner has prayed for Page No.# 5/8 calling a report from the revenue authority to ascertain the measurement of the suit land in the shares of both Abdul Kayum and Md Masher Ali Ahmed and also for recalling the order dated 05.04.2025, vide which writ of execution was issued by the learned Executing Court. 9. It also appears that the learned Executing Court, after hearing the parties, held that upon perusal of the record, it appears that on the last date i.e. 05.04.2025, writ was issued by this Court for Execution of the decree dated 14.12.2004, in connection with the main suit i.e. T.S. 136/2000. 10. Upon the perusal of the judgment and decree, dated 14.12.2004, it appears that the right, title and interest of the decree holder was declared in respect of the Schedule-A land measuring 2 Kathas 10 Lechas and the defendant was directed to be evicted from the Schedule – B land which measures 6 ½ Lechas. The learned Executing Court had observed that the judgment debtor had preferred an appeal against the judgment and decree dated 14.12.2004, and the same was dismissed vide judgment and order dated 12.03.2024 and also imposed a cost of Rs. 10,000/-. 11. I have also carefully gone through the plaint in the T.S. No. 136/2000, which is annexed with the petition as Annexure-1, and it appears that the plaintiff, Md. Masher Ali Ahmed had instituted the suit arraying Md. Taufiz Ali as defendant (the present petitioner) as defendant and also arrayed one Md. Abdul Kayum, Md. Abdul Hai, Musstt. Omran Nessa, Md. Abdul Gaffar, Musstt. Dossar Begum, Md, Abdul Hasim, Musstt. Mina Begum and Md. Ful Mahmad as profroma defendants and he prayed for relief only against the defendant No.1, i.e. the present petitioner and the decree was also passed against the present petitioner and the appeal was preferred by the present petitioner against the respondent herein i.e. Md. Masher Ali Ahmed and the second appeal being RSA Page No.# 6/8 No. 63/2011 was preferred by the present petitioner against Md. Masher Ali Ahmed and eight others. 12. Thus, it becomes clear that no relief was being sought for in the title suit against the proforma defendant namely, Md. Abdul Kayum. And since decree has been passed only against the present petitioner being the defendant No.1, and no relief has been claimed against the pro-forma defendants and since writ was issued by the learned Executing Court against the present petitioner for execution of the decree, this Court is unable to record concurrence with the submission of Mr. Ganguly, learned counsel for the petitioner, that mere appearance of the name of the pro-forma defendant No.2, in the jamabandi and Katcha Patta satisfies the requirement of Section 47 of the CPC and as such, the learned Executing Court has rightly dismissed the petition. 13. It appears that the learned Executing Court had observed that now the petition No. 1018/2025 was filed by the judgment debtor with a new ground that the jamabandi, in respect of the suit land shows that the suit land only comprises 2 Kathas 5.34 Lechas and not 2 Kathas 10 Lechas. Now, it is well settled law that the Executing Court cannot go behind the decree and no new plea can be raised for the first time in execution proceedings. Thereafter, relying upon the decision of Hon’ble Supreme Court in the case of Dhurandhar Prasad Singh (supra), the learned Executing Court had held that the petitioner has raised the issue of measurement for the first time in execution proceeding only and not during the trial of the suit and the appeal as well and the petition filed by the petitioner does not fulfill the requirements for any relief under Section 47 CPC and thereafter, dismissed the same. 14. If the findings, so recorded by the learned Executing Court is examined in Page No.# 7/8 the light of the given facts and circumstances on record and also in the light of the decision of Hon’ble Supreme Court in the case of Dhurandhar Prasad Singh (supra), this Court is unable to agree with the submission of Mr. Ganguly, learned counsel for the petitioner, that the impugned order, so passed by the learned Executing Court suffers from any infirmity or illegality requiring any interference of this Court. As observed by the learned executing Court, the issue of measurement neither raised in the trial Court and nor before the Appellate Court and such an issue is raised for the first time before the executing Court and it is well settled that Executing Court cannot go behind the decree. Pursuant to the decree, dated 14.12.2004, the learned Executing Court had issued the writ for execution of the aforementioned decree. 15. I have also gone through the decision referred by Mr. Ganguly, learned counsel for the petitioner in Gurnam Singh (supra), wherein it has been held that it is a ‘fundamental principle’ of law laid down by this Court in Kiran Singh K Other Vs. Chaman Paswan & Others reported in AIR 1954 SC 340 that a decree passed by the Court, if it is a nullity, its validity can be questioned in any proceeding including the execution proceedings or even in collateral proceedings whenever such decree is sought to be enforced by the decree holder. The reason is that the defect of this nature affects very authority of the Court in passing such decree and goes to the root of the case. This principle, in our considered opinion, squarely applies to this case because it is a settled principle of law that the decree passed by a Court for or against a dead person is a “nullity”. But, in view of the factual scenario of the case in hand, as discussed herein above, this Court afraid, the ratio laid down in the above noted case would not advance the argument of Mr. Ganguly, learned counsel for the petitioner. Page No.# 8/8 16. In the result, I find no merit in this petition, and accordingly, the same stands dismissed with a cost of Rs. 5,000/-(Rupees Five Thousand), to be paid by the petitioner which shall be deposited in the Welfare Fund of Gauhati High Courts Employees’ Association. JUDGE Comparing Assistant