Page No.# 1/13 GAHC010118922025 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : CRP(IO)/217/2025 MD. MAINUL HOQUE AND ORS S/O- LATE HABEZUDDINI. R/O- VILL.- BILPARA, P.O.- BHITORDUAR, DIST.- KAMRUP, ASSAM 2: MD. GAFUR ALI S/O- LATE HABEZUDDINI. R/O- VILL.- BILPARA P.O.- BHITORDUAR DIST.- KAMRUP ASSAM 3: MUSTT. HALIMA KHATUN W/O- LATE HABEZUDDINI. R/O- VILL.- BILPARA P.O.- BHITORDUAR DIST.- KAMRUP ASSAM 4: MD. SATTAR ALI S/O- LATE JURAN ALI. R/O- VILL.- CHOUDHURY PAM P.S.- CHHAYGAON P.O.- KALATOLI PATHER DIST.-KAMRUP ASSAM 5: MD. NUR UDDIN S/O- LATE JURAN ALI. R/O- VILL.- CHOUDHURY PAM P.S.- CHHAYGAON P.O.- KALATOLI PATHER DIST.-KAMRUP ASSAM Page No.# 2/13 6: MD. MAHIRUDDIN S/O- LATE JURAN ALI. R/O- VILL.- CHOUDHURY PAM P.S.- CHHAYGAON P.O.- KALATOLI PATHER DIST.-KAMRUP ASSAM 7: MD. SAHAR ALI @ SHAHAR ALI AHMED S/O- LATE KURBAN ALI. VILL.- CHOUDHURY PAM P.S.- CHAYGAON P.O.- KALTOLI PATHER DIST.KAMRUP ASSA VERSUS MUSTT. CHAMIRAN NESSA BIBI AND ANR W/O- LATE MUJAMMIL MIYA. R/O- VILL.- CHOUDHURY PAM, P.S. CHHAYGAON, P.O.- KALATOLI PATHER. DIST.- KAMRUP, ASSAM 2:MD. LAL MIYA. S/O- LATE MUJAMMIL MIYA. R/O- VILL.- CHOUDHURY PAM P.S. CHHAYGAON P.O.- KALATOLI PATHER. DIST.- KAMRUP ASSA Advocate for the Petitioner : MR. A ALI, MR. A C SARMA,S. AHMED Advocate for the Respondent : K U AHMED (R-1,2), MR. S AHMED(R-1,2),T UDDIN(R-1,2) BEFORE HONOURABLE MR. JUSTICE KALYAN RAI SURANA ORDER Date : 22-05-2026 Page No.# 3/13 Heard Mr. A.C. Sarma, learned senior counsel assisted by Mr. G. Bharadwaj, learned counsel for the petitioner as well as Mr. K.U. Ahmed, learned counsel for the respondent nos. 1 and 2. 2. This application exposes the delay in execution of the decree passed by the civil courts, which could have been avoided in this case. 3. By filing this application under Article 227 of the Constitution of India, the petitioners, who are judgment debtor nos. 1 to 7 in the proceedings of T.Ex. Case No. 7/2023, have assailed the impugned order dated 26.05.2025, passed by the learned Civil Judge (Junior Division), Kamrup, Amingaon, in the said execution proceeding. 4. The respondents are the plaintiffs in T.S. No. 47/2018, which was filed before the Court of learned Munsiff No.1, Kamrup (R), Amingaon [now re-designated as Court of Civil Judge (Junior Division), Kamrup, Amingaon]. The respondent nos. 1 to 7 in this application are arrayed as defendant nos.1 to 7 in the suit. 5. The prayers in the said suit were for (a) decree for declaration of right, title, and interest of the plaintiffs over the suit land Schedule-A and Schedule-B land; (b) decree for declaration that the plaintiffs and the defendant nos. 1, 2 and 3 have undivided right, title and interest and possession over Schedule-B land and that the defendant nos. 4 to 9 are mere trespassers to Schedule-A land and are liable to be evicted from Schedule-A land; (c) decree for ejectment of defendant nos. 4 to 9 from Schedule-A land along with their men and materials and for handing over vacant possession of Schedule-A land in favour of the plaintiffs; (d) decree for permanent injunction restraining the Page No.# 4/13 defendants and their men, heirs, attorney, assigns, executors, hired persons, etc. from entering into the suit land (Schedule-A and B land); (e) cost; (f) any other reliefs. 6. In paragraph 2 of the plaint, it has been pleaded by the respondents/defendant nos. 1, 2 and 3 that they have sought for relief of declaration of title and for ejectment of defendant nos. 1, 2 and 3 from Schedule-B land and for ejectment of defendant nos. 4, 5, 6, 7, 8 and 9 from Schedule A land. 7. The plaint of T.S. No. 47/2018 is annexed to this application as Annexure-1. In paragraph nos. 2, 4, 5 and 6, the respondents/defendant nos. 1, 2 and 3 have pleaded regarding two distinct plots of land, which has been referred to as Schedule-A land and Schedule-B land. 8. On a perusal of the copy of the plaint (Annexure-1), the Schedule-B is in internal page no. 9 of the plaint. The Schedule-B is measuring 1 Bigha 1 katha 11 lechas, but Schedule A land is not available. 9. The said T.S. No. 47/2018 suit was decreed ex-parte vide judgment and decree dated 20.10.2022. The decree are as follows:- 1. The plaintiffs have right, title, interest over the suit land. The plaintiff is therefore entitled to evict the defendant nos. 4 – 9 from the suit premises and restore their possession over the suit premises. 2. The defendant nos. 4 to 9 are directed to vacate the suit premises within 30 days from today and hand over vacant possession top the plaintiffs and defendant nos. 1 – 3. The defendant nos. 4-9 and their men and agents are permanently restrained from interfering with the peaceful possession of the plaintiff over the suit premises. 3. The defendants are also directed to pay the cost of the suit. Page No.# 5/13 10. On a comparative reading of the ex parte decree, extracted hereinbefore, the decree ex facie appears to be a departure from the statement made in the paragraph-2 of the plaint and prayers (b) and (c) of the plaint. 11. Be that as it may, the decree that was drawn-up is for eviction of only the defendant nos. 4 to 9 from the suit premises. Although the decree does not refer to any specific land, but in internal page no. 3 of the decree (available at page 39 of this application, the description of the decreetal land is as under:- SCHEDULE A plot of land measuring 1 bigha 1 katha 11 lechas, covered by Dag No. 31 of K.P. Patta No. 204 and land measuring 1 bigha 3 katha 9 lechas, covered by Dag No. 32 of K.P. Patta No. 204 of village- Choudhury Pam, Mouza- Goroimari, Kamrup, Assam, which is bounded by- North: Land of Innas Ali. South: Public Road. East: Land of Nuruudin. West: Land of Azahar Ali. 12. The land described in the Schedule of the decree is found to match with the description of land described in Schedule-B of the plaint. 13. The said decree dated 20.12.2022, passed in T.S. No. 47/2018, was put to execution by filing an execution petition on 29.04.2023, which was registered as T. Ex. Case No. 7/2023 before the Court of Munsiff, Kamrup, Amingaon. In the said execution petition, the nature of assistance required under paragraph 11 of the execution petition is extracted below: “It is therefore prayed that the Hon'ble court may kindly put the Decree Holders / plaintiffs in possession over the decreetal land described in schedule below by evicting the defendant/ judgment debtor No 4 to 9 are permanently restrained the Page No.# 6/13 defendant / judgment debtor No- 1 to 9, their men and agents from interfering with the peaceful possession of the plaintiffs / decree holders decreetal land and directed the defendants / judgment debtors to pay the cost of the suit.” 14. It appears that the Civil Nazir, Kamrup, Amingaon, had filed a report dated 22.05.2025, before the learned executing Court, to inform the Court to the effect that the Civil Nazir had gone to the decreetal land with two process servers accompanied by allotted police force and Lat Mandal of Goroimari Revenue Circle; made measurement and demarcated the decreetal schedule land described in the writ of attachment and gave possession of the decreetal land as shown by the Lat Mandal to the decree holder after dismantling the structures and removing the goods from the decreetal land with the help of the police force; and after explaining the demarcations of the decreetal schedule land to the decree holders, the decree holders took possession of the land. Accordingly, it was reported that the writ was returned after the execution process was completed successfully and peacefully. The said report is annexed to this application as Annexure-8. 15. Immediately on the next date after the execution of the decree, the respondent nos. 1 to 7 (i.e., defendant/ judgment debtor nos.1 to 7 had filed petition no. 1254 dated 23.05.2025, before the learned executing Court under Section 47 of the CPC, praying for stay of the proposed eviction of the defendants/ judgment debtors no. 4 to 9. Therefore, in view of the cause title of the said petition no. 1254 dated 23.05.2025, as objection is raised against the proposed eviction of defendant nos. 4 to 9, it prima facie appears to the Court that all the petitioners, except petitioner nos. 4 to 7 in this application cannot be said to be the persons aggrieved by the execution of the decree in the present form. Page No.# 7/13 16. Be that as it may, on the same day, i.e. 23.05.2025, the respondents/ decree holder nos. 1 and 2 had also filed petition no. 1249 dated 23.05.2025, before the learned executing Court, amongst others, stating that the defendant nos. 4 to 9 were bona fide purchasers of a part of the suit land from their predecessor-in-interest and the defendant nos. 1 to 3 are not seeking eviction of defendant nos. 4 to 9 from the suit land. It was stated that as per order dated 02.07.2018, the name of Sahar Ali, the defendant no. 8 was struck- off, owing to which only 8 defendants remained in the suit, but the decree was drawn-up against all 9 (nine) defendants and therefore, it was stated that there was total lack of application of mind in appreciating the facts in the proper perspective. It was stated that the defendant nos. 1 to 7 came to know about the commencement of the execution proceeding only after the Court Amin visited the suit premises “day before yesterday” for evicting the judgment debtor nos. 4 to 9 and therefore, they could not resist the same by filing appropriate application earlier. They claimed to be in possession for last 65 years since 1951/1959 when their predecessor-in-interest had purchased the suit land from the predecessor-in-interest of judgment debtor nos. 1 to 3 and allege that the decree was fraudulently obtained. Thus, the petitioner/ defendant nos. 1 to 7, by filing petition no. 1254/25 dated 23.05.2025, prayed for some time to file objection to the execution, which could not be filed on that day due to lack of documents. 17. The respondents also appeared before the learned executing court and by filing petition no. 1249/25 dated 23.05.2025, informed the learned executing Court that the administrative staff with police staff went to the suit land for execution, but could not complete the execution and alleged that the judgment debtors were still residing on their residence standing on the suit Page No.# 8/13 land. Accordingly, the respondents/decree holders, prayed for re-execution of the decree. 18. Therefore, in this case, both contesting sides, i.e. the petitioner nos. 1 to 7 and the respondent nos. 1 and 2 had appeared before the learned executing Court and had admitted about the non-execution of the decree. 19. It appears from the copy of the order dated 26.05.2025, passed by the learned Civil Judge (Junior Division) Kamrup, Amingaon, that most surprisingly, the Civil Nazir, who was the in-charge of the execution, gave a volte face statement before the said learned Court. That part of the order dated 23.05.2025, which is relevant for this case, is quoted below:- Upon perusal of the report of Nazir, it is seen that the Nazir handed over the suit land after removing the belongings of the defendants and demolition the demolished the house standing on the suit land. It is to be noted that the Nazir submitted in Court verbally that the said house standing on the suit land was demolished to the extent of removing the belongings of the defendants and the walls, but the roof was left standing. 20. Thus, the discrepancies, which is noted in this case are as follows:- a. The pleadings in the suit refer to Schedule-A land and Schedule-B land, but the photocopy of the certified copy of the plaint, annexed to the writ petition, contains land described in Schedule-B only. b. Prayer (a) in the plaint is to declare right, title and interest of the plaintiff over Schedule-A and Schedule-B land. c. In prayer (b) of the plaint, the plaintiffs are seeking decree for declaration that the plaintiffs and defendant nos. 1, 2 and 3 have Page No.# 9/13 undivided right, title and interest over Schedule-B land and that the defendant nos. 4 to 9 were trespassers in Schedule-A land. Thus, prayer (a) and prayer (b) are contradictory. d. As per prayer (c) of the plaint, the prayer is to evict defendant nos. 4 to 9 from Schedule-A land, which is not described in the Schedule appended to the plaint. Thus, prayer (c) is not in consonance with and is rather contradictory to prayer (b). e. Pleadings in paragraph 2 is that the plaintiffs are seeking eviction of the defendant nos. 1, 2 and 3 from Schedule-B land and eviction of the defendant nos. 4 to 9 from Schedule-A land. Thus, there was no prayer to pass a decree for eviction of the defendant nos. 4 to 9 from Schedule-B land. 21. Moreover, it is seen from the said order dated 26.05.2025, that the Civil Nazir did not support her own report dated 22.05.2025, regarding satisfactory execution of the decree and gave a contradictory statement before the learned executing Court that the house in the suit land was demolished to the extent of removing the belongings of the defendants and the walls but the roof was standing. 22. The Court is appalled to note that there was no order in the ex parte decree dated 20.10.2022, empowering the Civil Nazir to demolish any houses that were standing on the suit land. This would be evident from the decree that dated 20.10.2022, which has been extracted hereinbefore. The decree merely directs that the defendant nos. 4 to 9 to vacate the suit premises within 30 days and hand-over vacant possession to the plaintiffs and defendant nos. 1, 2 and 3 and they were permanently restrained from entering the suit Page No.# 10/13 land and from interfering with the peaceful possession of the plaintiffs. 23. Therefore, as per the report dated 22.05.2025, submitted by the Civil Nazir, the steps that were reported to have been taken for the execution of the decree ex facie exceeded the mandate of the decree passed by the learned Munsiff, Kamrup, Amingaon (i.e. both as the trial court and the executing court), which has shocked the conscience of the Court. In this case, the Civil Nazir, is on record of having taken law into her own hands and had blatantly disobeyed and violated the contents of the decree. 24. The disobedience to the decree by the Civil Nazir is not all. Similarly, the decree that was passed by the learned Munsiff, Kamrup, Amingaon [now re-designated as Civil Judge (Junior Division), Kamrup, Amingaon] also appears to have been drawn up without consulting the pleadings and prayer made in T.S. No. 47/2018 and therefore, de hors the prayers made in the plaint. 25. Moreover, the petitioners had claimed in paragraph 5 of the petition no. 1254 dated 23.05.2025 that the name of respondent no. 6 was struck-off vide order dated 02.07.2018. If the said statement is correct, then there could have been no decree against the petitioner/defendant no.7. 26. Thus, the impugned order dated 26.05.2025, passed by the learned Civil Judge (Junior Division), Kamrup, Amingaon, in T.Ex. Case No. 7/2023, refusing to determine the nullity of the decree, in light of the discrepancies referred to in this order, is perverse and therefore, the said impugned order is hereby set aside and quashed. 27. Therefore, as a lot of factual discrepancies have emerged in the discussions made in this order, the learned executing Court has to ascertain Page No.# 11/13 whether or not the judgment and decree dated 20.10.2022, passed in T.S. No. 47/2018, is a nullity, being contrary to (a) the pleadings in the plaint; (b) the schedule of suit land given in the plaint; (c) whether the decree is a nullity for ordering eviction of the defendant no. 6 from the suit land, while the petitioners/ defendant nos. 1 to 7 have projected before this Court that the name of the said defendant was struck-off vide order dated 02.07.2018; (d) whether the decree no. 1 declaring right of the plaintiffs to evict the defendant nos. 4 to 9 would amount to decree for eviction of the defendant nos. 4 to 9 and if so, from which suit premises. 28. In the event the judgment debtors in the said execution proceeding file an application to set aside the ex parte decree by showing tenable and lawful causes, the said learned Court, shall also examine if under the facts and circumstances of the case, it would be in the interest of justice to set aside the ex parte decree by giving opportunity to the judgment debtors to contest the suit. 29. Before parting with the records, this case is found to be an appropriate case where in exercise of superintending jurisdiction under Article 227 of the Constitution of India, the learned Civil Judge (Junior Division), Kamrup, Amingaon, be directed to make an enquiry as to how and why the Civil Nazir had given a false report dated 22.05.2025, regarding satisfaction of the decree, while the defendant/judgment debtor nos.1 to 7 and the plaintiffs/decree holders have both filed separate petitions stating that the decree could not be executed and take such consequential steps as may be deemed fit and proper. 30. Thus, on facts, the impugned order dated 26.05.2025, passed by Page No.# 12/13 the learned Civil Judge (Junior Division), Kamrup, Amingaon, in T.Ex. Case No. 7/2023, is set aside. Resultantly, the petition no. 1254 dated 23.05.2025, is restored to file of the said learned Court for a fresh hearing and disposal in accordance with law. 31. In order to examine the action taken by the Civil Nazir under the establishment of the learned District Judge, Kamrup, Amingaon, the Registry shall place this record before the Portfolio Judge on the administrative side. 32. As both sides are represented, both sides are directed to appear before the learned Civil Judge (Junior Division), Kamrup (Amingaon) on 05.06.2026 and by producing a certified copy of the order await for further orders to be passed by the said learned Court. 33. Till the date of appearance of the parties before the said learned Court which is fixed on 05.06.2026, the interim order staying the operation of the order dated 26.05.2025 by the learned executing Court shall continue till 05.06.2026. On 05.06.2026, it would be open for the said learned executing Court to pass such appropriate order(s), as deemed fit and proper under the facts and circumstances of the case. 34. The learned Civil Judge (Junior Division) is requested to take up the proceedings in an expeditious manner by fixing short dates and curtailing all unnecessary adjournments to any sides, save and accept, adjournments that may be caused on death of any party to the proceeding. Page No.# 13/13 JUDGE Comparing Assistant