Page No.# 1/8 GAHC010097732026 2026:GAU-AS:6992 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : CRP(IO)/182/2026 SRI PRANAB DUTTA SON OF LATE HEM CHANDRA DUTTA, RESIDENT OF NAKARI, WARD NO. 2, P.O.- LAKHIMPUR TOWN, DISTRICTLAKHIMPUR, PIN- 787001, ASSAM. 2: SRI DEEP JYOTI DAS SON OF SRI DEBEN CHANDRA DAS RESIDENT OF K.B. ROAD NEAR NAMGHAR NORTH LAKHIMPUR DISTRICTLAKHIMPUR PIN- 787001 ASSAM VERSUS SRI BABUL DUTTA SON OF LATE GULAP DUTTA, RESIDENT OF VILLAGE- CHINATOLIA, P.O.- BOGOLIJAN, P.S.- NORTH LAKHIMPUR, DISTRICTLAKHIMPUR, PIN- 787031, ASSAM. Advocate for the Petitioner : MR. D CHAKRABARTY, MS D.CHAKRABARTY Advocate for the Respondent : MR. A SATTAR, FOR CAVEATOR Page No.# 2/8 BEFORE HONOURABLE MR. JUSTICE KALYAN RAI SURANA JUDGMENT AND ORDER (ORAL) Date : 20.05.2026 Heard Mr. D. Chakraborty, learned counsel for the petitioners as well as Mr. A. Sattar, learned counsel for the respondent. 2. By filing this application under Article 227 of the Constitution of India, the petitioners have assailed the impugned order dated 20.04.2026, passed by the learned Civil Judge (Senior Division), Lakhimpur, North Lakhimpur by which petition no. 88/26, dated 17.01.2026, filed under Order XXVI Rule 9 CPC, in connection with T.Ex. No. 01/2024, for appointing Commissioner to ascertain the market value of the decretal property, was rejected. 3. As the learned counsel for the respondent had appeared, in view of the issue raised in this application, the Court is inclined to issue Rule returnable forthwith, without requirement of any fresh steps to be taken. As agreed to by the learned counsel for both sides, the matter has been heard for disposal. 4. The learned counsel for the petitioners, by referring to the documents appended to this application, has submitted that pursuant to directions of the learned executing Court i.e., the learned Civil Judge (Senior Division), Lakhimpur, North Lakhimpur, a valuation report dated 18.04.2014, prepared by a Government Approved Valuer was filed, wherein the land was valued at Rs.1,14,78,407/- ( Rupees One Crore fourteen lakh seventy eight thousand four hundred and seven) and valuation of the building was made at Page No.# 3/8 Rs.1,05,00,000/-( Rupees One Crore five lakh only) and accordingly, the valuation of the decretal property was assessed at Rs.2,19,78,407/-(Rupees Two Crore nineteen lakh seventy thousand four hundred and seven only). The Said Valuation report was objected to by the respondent decree holder. Accordingly, on the ground that the agreement for sale where the property was valued at Rs.1,07,00,000/- (Rupees One Crore seven lakh) is stated to be much lower than the market value of the property, the petitioners filed petition no. 88/26 on 17.01.2026 for appointment of a Commissioner to ascertain the current market value of the property. It is projected that as the value of the decretal property was about Rs. 2.00 Crore more than 10 (ten) years ago, the current value of the property would be much higher. Accordingly, it is submitted that the learned executing Court had mechanically rejected the said petition no. 88/26 on the ground that under Section 47 CPC, the the executing cannot examine the validity of the order and decree passed by the Court unless the order of the Court is itself without jurisdiction. Thus, it was held that the valuation of the suit property cannot be allowed to be challenged at this stage as the said valuation has affected the decree on merit, rendering it null and void and accordingly, the petition was rejected. 5. Referring to the ground of challenge, the learned counsel for the petitioners has submitted that the prayer for ascertaining the market value of the property could not have been rejected, and therefore, the decision of the learned Court below was perverse. Moreover, it was submitted that the valuation of the property conducted in the year 2014 was rendered obsolete, and the current valuation of the property was required to be ascertained. By referring to the case of Rajinder Kumar Vs. Kuldeep Singh & Ors., (2017) 15 SCC 529, it is submitted that the said decision is an authority on the point Page No.# 4/8 that the suit for specific performance of a contract does not come to an end upon passing of the decree and the Court which had passed the decree retains control over the decree and accordingly, it was submitted that the Court has the power to assess the valuation of the property. Accordingly, the prayer is made to interfere with the impugned order. 6. Per contra, the learned counsel for the respondent has submitted that from the documents appended to this application, it would be evident that the judgment-debtors/ respondents had availed loan from the State Bank of India and on their default, SARFAESI action was initiated pursuant to an e- auction notice, where the liability of the petitioners was assessed at Rs.1,54,13,879.37/-. The reserved price of the property was Rs. 88.02 Lakh. Accordingly, on the ground that the Govt. approved valuer had determined the market value of the property at Rs.2,19,78,407/-(Rupees Two Crore nineteen lakh seventy eight thousand four hundred and seven only). The petitioner no.1 had approached this Court by filing WP(C) No. 4066/2014. This Court by interim order dated 22.08.2014, had stayed the e-auction till reconsideration of the reserve price by the bank. 7. By referring to the order dated 20.02.2017, passed by this Court in said the WP(C) No. 4066/2014, it has been submitted that notwithstanding the reserve price of the e-auction of the property was Rs.88.20 Lakh, but as the matter was amicably resolved between the parties, the petitioner no. 1 did not pursue the writ petition and the writ petition was closed as not pressed. It is submitted that thereafter, though the reserve price of the property was assessed at Rs.88,20,000/-(Rupees Eighty eight lakh twenty thousand only), the petitioners approached the respondent and agreed to purchase the suit Page No.# 5/8 property at value of Rs.1,07,00,000/- (Rupees One Crore seven lakh only) by an Agreement for Sale dated 30.07.2016. It has been submitted that the said value was an agreed sale consideration and only thereafter, the petitioners could settle the loan account. Subsequently, the petitioners had executed the said Agreement for Sale of land and building. Accordingly, it is submitted that it is not a case where the petitioners were not aware of their dues payable to the bank, as well as about the SARFAESI action taken by the bank. Therefore, with full knowledge, the petitioners had entered into an Agreement for Sale with the respondent for the land and building at an agreed consideration of Rs.1,07,00,000/-(Rupees One Crore seven lakh only). However, taking money from the respondent after liquidation of the loan, the petitioners did not execute the sale deed, which compelled the respondent to file a suit. The suit was not contested by the petitioners as no written statement was filed and contest was abandoned, and the ex parte decree came to be passed. 8. Considered the submissions as well as the case of Rajinder Kumar (supra), cited by the learned counsel for the respondent. 9. It is not in dispute that this Court in its order dated 22.08.2014 passed in WP(C)/4066/2014, had referred to the assessed market value of the property at Rs.2,19,78,407/-(Rupees Two Crore nineteen lakh seventy eight thousand four hundred and seven only). However, with the eyes wide open and with full knowledge of the said order dated 22.08.2014, the petitioners entered into the Agreement for Sale of land and building which was executed and registered on 30.07.2016. It is also admitted that the petitioners did not contest the suit by adducing evidence or cross-examining the witnesses examined by the respondent/ plaintiffs. Therefore, an ex parte decree came to Page No.# 6/8 be passed. 10. The learned counsel for the petitioners, by citing the case of Rajinder Kumar (supra), had referred to paragraph no. 30 of the said judgment. On perusal of the said judgment and specifically paragraph no. 30 thereof, the said judgment cannot be read to mean that the Court which has passed the decree for specific performance would retain the jurisdiction and control over the decree so much so that the decree could be modified to empower the enhance the sale consideration by the executing Court. In this case, the decree was passed by the Court of Civil Judge (Senior Division), Lakhimpur, North Lakhimpur and the same Court, while undertaking an execution petition cannot be said to be the Court which had passed the decree. An executing Court would have a different role than that which had passed a decree. This can be culled out from the provision provision of Section 28 of the Specific Relief Act which is couched in a language which clarifies that. The provision of Section 28 of the Specific Relief Act is quoted below: “28. Rescission in certain circumstances of contracts for the sale or lease of immovable property, the specific performance of which has been decreed.—(1) Where in any suit a decree for specific performance of a contract for the sale or lease of immovable property has been made and the purchaser or lessee does not, within the period allowed by the decree or such further period as the court may allow, pay the purchase money or other sum which the court has ordered him to pay, the vendor or lessor may apply in the same suit in which the decree is made, to have the contract rescinded and on such application the court may, by order, rescind the contract either so far as regards the party in default or altogether, as the justice of the case may require. (2) Where a contract is rescinded under sub-section (1), the court— (a) shall direct the purchaser or the lessee, if he has obtained possession of the property under the contract, to restore such possession to the vendor or lessor, and Page No.# 7/8 (b) may direct payment to the vendor or lessor of all the rents and profits which have accrued in respect of the property from the date on which possession was so obtained by the purchaser or lessee until restoration of possession to the vendor or lessor, and, if the justice of the case so requires, the refund of any sum paid by the vendee or the lessee as earnest money or deposit in connection with the contract. (3) If the purchase or lessee pays the purchase money or other sum which he is ordered to pay under the decree within the period referred to in sub-section (1), the court may, on application made in the same suit, award the purchaser or lessee such further relief as he may be entitled to, including in appropriate cases all or any of the following reliefs, namely:— (a) the execution of a proper conveyance or lease by the vendor or lessor; 13 (b) the delivery of possession, or partition and separate possession, of the property on the execution of such conveyance or lease. (4) No separate suit in respect of any relief which may be claimed under this section shall lie at the instance of a vendor, purchaser, lessor or lessee, as the case may be. (5) The costs of any proceedings under this section shall be in the discretion of the court” 11. From the provision of Sub-Section 1 of Section 28 of the Specific Relief Act, it is very clear that if the purchaser fails to pay the purchase money which the Court had ordered him to pay, the vendor may apply in the same suit in which the decree is made to enforce the contract. Therefore, in a suit for specific performance of contract, if the decree is sought rescinded, the application has to be made in the suit and not in the execution proceedings. 12. Therefore, though technically the 2 (two) Courts are same, i.e. the one which passed the decree and the one which is executing the decree, but both are clothed in a different jurisdiction. Therefore, the Court does not find any merit in the challenge to the impugned order dated 22.04.2026, passed by the learned executing Court while rejecting petition no. 88/26. The learned Executing Court is found have not committed any jurisdictional error in its Page No.# 8/8 appreciation that in an application under Section 47 of the CPC, the Executing Court cannot examine the validity of the judgment and decree. In this case the respondent’s side has been able to show that the petitioners, despite knowing the valuation which is reflected in the order dated 22.08.2014 passed in WP(C) No. 4066/2014, and with full knowledge of the same, entered into an otherwise lawful and valid Agreement for sale of land and building and had given a valuation which was mutually agreed to. Therefore, the learned executing Court had rightly not examine the issue of valuation in execution proceedings. 13. Accordingly, the challenge to the order dated 20.04.2026, passed by the learned Civil Judge (Senior Division), Lakhimpur, North Lakhimpur in T.Ex. No. 01/2024, fails. Accordingly, this application stands dismissed. 14. Parties are left to bear their own cost. JUDGE Comparing Assistant