Research › Search › Judgment

Gauhati High Court · body

2026 DAILYLAW 10409 (GAU)

On the Death of Jaganmoy Paul, His Lehal Heirs Kalyani Paul v. Rasheswar Paul @ Rashu Paul S/o Late Jatindra Chandra Paul

2026-03-24

Kaushik Goswami

body2026
JUDGMENT : KAUSHIK GOSWAMI, J. 1. Also heard Mr. B.K. Sen, learned counsel appearing for the respondents. 2. The present revision petition under Section 115 of the Code of Civil Procedure, 1908 (CPC), is directed against the Judgment and Order dated 04.01.2024, passed by the learned Civil Judge (Sr. Div.) No. 2, Cachar, Silchar in Misc. Appeal No.09/2019. By the said judgment the Appellate Court affirmed the order dated 15.11.2019, passed by the learned Munsiff No.2, Cachar, Silchar in Title Execution Case No.5/2014, whereby the application filed under Section 47 read with Section 151 of CPC by the judgment debtor was rejected. 3. The lis originates from Title Suit No.164/2007, instituted by the respondent seeking ejectment of the predecessor of the present petitioners. The suit was initially dismissed ex-party by Judgment and Decree dated 19.02.2011. However, in Title Appeal No.16/2011 the First Appellate Court by Judgment and Decree dated 21.04.2014, reversed the Trial Court’s decision and decreed the suit. 4. The said Decree was put to execution in Title Execution Case No.5/2014 (New No.59/2014). During execution the predecessor of the petitioners filed an objection petition under Section 47 CPC, contending that the decree was inexecutable on the ground of res judicata and lack of jurisdiction. The Executing Court rejected the objection, holding that it could not go behind the decree. The Appellate Court affirmed the same. 5. Mr. S.D. Purkayastha, learned counsel appearing for the petitioners contends that the decree sought to be executed is a nullity, having been passed without jurisdiction. It is urged that the Appellate Court wrongly applied the Assam Urban Areas Rent Control Act, 1972, although the tenancy pertained to land, thereby exceeding its jurisdiction. It is further contended that the issue stood concluded in earlier proceeding and is barred by res judicata. 6. Per-contra, Mr. B.K. Sen, learned counsel for the respondent submits that the plea of default had already been conclusively determined in Title Suit No.112/2004 which attained finality. It is argued that the Executing Court cannot re-examine such findings and no jurisdictional error has been demonstrated warranting interference under Section 115 CPC. In support of his submissions, he relies upon the decisions of the Apex Court in the case of Periyammal (Dead) through LRs. & Ors. Vs. V. Rajamani & Anr., 2025 (0) Supreme (SC) 461 and in the case of Sushil Kumar Mehta Vs. Gobind Ram Bohra (Dead) through his LRs. In support of his submissions, he relies upon the decisions of the Apex Court in the case of Periyammal (Dead) through LRs. & Ors. Vs. V. Rajamani & Anr., 2025 (0) Supreme (SC) 461 and in the case of Sushil Kumar Mehta Vs. Gobind Ram Bohra (Dead) through his LRs. , (1990) 1 SCC 193 . 7. I have given my due consideration to the arguments advanced by the learned counsels appearing for the contending parties and have perused the materials available on record. I have also duly considered the case laws cited at the Bar. 8. The issue that arises for determination is whether the Executing Court was justified in rejecting the objection under Section 47 CPC, and whether the impugned decree suffers from any jurisdictional infirmity so as to render it a nullity. 9. The scope of interference under Section 47 CPC is well settled. An Executing Court cannot go behind the decree and is bound to execute it as it stands, unless the decree is shown to be i) a nullity; ii) ambiguous; or iii) passed without jurisdiction. 10. In the case of Brakewel Automotive Components (India) (P) Ltd. v. P.R. Selvam Alagappan, (2017) 5 SCC 371 , the Apex Court reiterated that powers available under Section 47 CPC are quite different and much narrower than those available in appeal/revision or review. It is further reiterated that Executing Court can neither travel behind decree nor sit in appeal over the same or pass any order jeopardizing rights of parties thereunder. The relevant paragraph of the aforesaid judgment reads as under: “ 20. It is no longer res integra that an executing court can neither travel behind the decree nor sit in appeal over the same or pass any order jeopardising the rights of the parties thereunder. It is only in the limited cases where the decree is by a court lacking inherent jurisdiction or is a nullity that the same is rendered non est and is thus unexecutable. An erroneous decree cannot be equalled with one which is a nullity. There are no intervening developments as well to render the decree unexecutable. 21. As it is, Section 47 of the Code mandates determination by an executing court, questions arising between the parties or their representatives relating to the execution, discharge or satisfaction of the decree and does not contemplate any adjudication beyond the same. There are no intervening developments as well to render the decree unexecutable. 21. As it is, Section 47 of the Code mandates determination by an executing court, questions arising between the parties or their representatives relating to the execution, discharge or satisfaction of the decree and does not contemplate any adjudication beyond the same. A decree of court of law being sacrosanct in nature, the execution thereof ought not to be thwarted on mere asking and on untenable and purported grounds having no bearing on the validity or the executability thereof. 22. Judicial precedents to the effect that the purview of scrutiny under Section 47 of the Code qua a decree is limited to objections to its executability on the ground of jurisdictional infirmity or voidness are plethoric. This Court, amongst others in Vasudev Dhanjibhai Modi v. Rajabhai Abdul Rehman5 in essence enunciated that only a decree which is a nullity can be the subject-matter of objection under Section 47 of the Code and not one which is erroneous either in law or on facts. The following extract from this decision seems apt: (SCC pp. 672-73, paras 6-7) “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. 7. When a decree which is a nullity, for instance, where it is passed without bringing the legal representative on the record of a person who was dead at the date of the decree, or against a ruling prince without a certificate, is sought to be executed an objection in that behalf may be raised in a proceeding for execution. 7. When a decree which is a nullity, for instance, where it is passed without bringing the legal representative on the record of a person who was dead at the date of the decree, or against a ruling prince without a certificate, is sought to be executed an objection in that behalf may be raised in a proceeding for execution. Again, when the decree is made by a court which has no inherent jurisdiction to make it, objection as to its validity may be raised in an execution proceeding if the objection appears on the face of the record: where the objection as to the jurisdiction of the court to pass the decree does not appear on the face of the record and requires examination of the questions raised and decided at the trial or which could have been but have not been raised, the executing court will have no jurisdiction to entertain an objection as to the validity of the decree even on the ground of absence of jurisdiction.” 23. Though this view has echoed time out of number in similar pronouncements of this Court, in Dhurandhar Prasad Singh v. Jai Prakash University, while dwelling on the scope of Section 47 of the Code, it was ruled that the powers of the court thereunder are quite different and much narrower than those in appeal/revision or review. It was reiterated that the exercise of power under Section 47 of the Code is microscopic and lies in a very narrow inspection hole and an executing court can allow objection to the executability of the decree if it is found that the same is void ab initio and is a nullity, apart from the ground that it is not capable of execution under the law, either because the same was passed in ignorance of such provision of law or the law was promulgated making a decree unexecutable after its passing. None of the above eventualities as recognised in law for rendering a decree unexecutable, exists in the case in hand. For obvious reasons, we do not wish to burden this adjudication by multiplying the decisions favouring the same view.” 11. In the present case, the plea of res judicata is wholly misconceived. None of the above eventualities as recognised in law for rendering a decree unexecutable, exists in the case in hand. For obvious reasons, we do not wish to burden this adjudication by multiplying the decisions favouring the same view.” 11. In the present case, the plea of res judicata is wholly misconceived. The earlier proceedings, including Title Suit No.37/1965 and Title Suit No.112/2004 pertained to declaration of rights and determination of tenancy status, whereas the present suit concerns ejectment on the ground of default. The causes of action are distinct and do not attract the bar of res judicata. 12. Significantly, in Title Suit No. 112/2004, the predecessor of the petitioners was categorically held to be a defaulter. The said finding attained finality, no appeal having been preferred. The First Appellate Court, while decreeing the ejectment suit, merely acted upon this concluded position. 13. The contention regarding lack of jurisdiction on account of application of the Assam Urban Areas Rent Control Act, 1972 is equally untenable. The suit being one for ejectment, the Civil Court has undoubted jurisdiction to adjudicate the dispute. At best, the argument pertains to an alleged error in application of law, which cannot render the decree a nullity. 14. It is trite that a decree does not become a nullity merely because it is erroneous in law. A jurisdictional error must strike at the very competence of the Court to entertain the matter. No such defect is demonstrated in the present case. 15. Further, the revisional jurisdiction under Section 115 CPC is confined to jurisdictional errors. This Court cannot reappreciate evidence or sit in appeal over concurrent findings of fact unless perversity or jurisdictional illegality is established. 16. The Executing Court and the Appellate Court have concurrently held that no jurisdictional infirmity exists. Upon independent scrutiny, this Court finds no reason to take a different view. 17. It is also noteworthy that the decree to be executed dates to 2014, and the decree holder has been deprived of its fruits for an inordinate period. The objections raised appear to be an attempt to delay execution rather than raise any bonafide jurisdictional issue. 18. In view of the foregoing discussions, this Court finds no illegality, material irregularity or jurisdictional error in the impugned orders warranting interference under Section 115 CPC. 19. Accordingly, the revision petition stands dismissed. 20. Interim order, if any, stands vacated. 21. The objections raised appear to be an attempt to delay execution rather than raise any bonafide jurisdictional issue. 18. In view of the foregoing discussions, this Court finds no illegality, material irregularity or jurisdictional error in the impugned orders warranting interference under Section 115 CPC. 19. Accordingly, the revision petition stands dismissed. 20. Interim order, if any, stands vacated. 21. The learned Executing Court is directed to proceed with the execution expeditiously, bearing in mind the mandate of timely enforcement of decrees. 22. No order as to cost.