Page No.# 1/9 GAHC010237752024 2026:GAU-AS:6991 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : CRP(IO)/525/2024 BABUL HUSSAIN S/O- LATE BOSIR UDDIN SK @ BACHU SK., R/O- VILLAGE- ADABARI PT-I, P.O. SAGOLCHERA, P.S. AND DIST. DHUBRI, ASSAM, PIN- 783324. VERSUS REJIYA KHATUN BIBI AND 2 ORS W/O- LATE NURUL HUDA SARKAR, R/O- VILL.- SAGOLCHERRA PART-III, P.S. SAGOLCHERRA, P.S. AND DIST. DHUBRI, ASSAM, PIN- 783324. 2:ABDUL REZZAK SARKAR S/O- LATE NURUL HUDA SARKAR R/O- VILL.- SAGOLCHERRA PART-III P.S. SAGOLCHERRA P.S. AND DIST. DHUBRI ASSAM PIN- 783324. 3:HAFIZ UDDIN SARKAR S/O- LATE NURUL HUDA SARKAR R/O- VILL.- SAGOLCHERRA PART-III P.S. SAGOLCHERRA P.S. AND DIST. DHUBRI ASSAM PIN- 783324 Advocate for the Petitioner : MR A ISLAM, MR M RANA Advocate for the Respondent : MR. D A KAIYUM (R-1,2,3), MR. M S MONDAL(R-1,2,3) Page No.# 2/9 Linked Case : CRP/37/2023 GOLZAR HUSSAIN S/O- LATE KACHU SK. R/O- VILL. SAGOLCHARA PART-I P.O.- SAGOLCHARA P.S. AND DIST.- DHUBRI ASSAM. VERSUS ON THE DEATH OF NURUL HUDA SARKAR AND 2 ORS HIS LEGAL HEIRS- 1.1:ABDUL REZZAK SARKAR (SON) VILL. SAGOLCHARA PART-III P.O.- SAGOLCHARA P.S. AND DIST. DHUBRI ASSAM. 1.2:HAFIZ UDDIN SARKAR (SON) VILL. SAGOLCHARA PART-III P.O.- SAGOLCHARA P.S. AND DIST. DHUBRI ASSAM. 1.3:REJIYA KHATUN BIBI (WIFE) VILL. SAGOLCHARA PART-III P.O.- SAGOLCHARA P.S. AND DIST. DHUBRI ASSAM. 2:ON THE DEATH OF BACHU SK. @ BASIR SK. HIS LEGAL HEIRS- 2.1:BABUL HUSSAIN (SON) R/O- VILL. ADBARI PART-I P.O.- SAGOLCHARA Page No.# 3/9 P.S. AND DIST.- DHUBRI ASSAM. 2.2:SAHAJALAL HUSSAIN (SON) R/O- VILL. ADBARI PART-I P.O.- SAGOLCHARA P.S. AND DIST.- DHUBRI ASSAM. 2.3:BAHIRAN BIBI (DAUGHTER) W/O JAHAN BEPARI R/O- VILL. CHAR KUMARGATI P.O.- TISTERPAR DIST.- DHUBRI ASSAM. 2.4:JARINA BIBI (DAUGHTER) W/O- SAMSER ALI R/O- VILL. KACHUARKHAS P.O.- TISTERPAR DIST.- DHUBRI ASSAM. 2.5:NUR BANU BIBI (DAUGHTER) W/O- SAHAJAHAN ALI R/O- VILL. NAUDARGAON P.O.- HOWRARPAR DIST.- DHUBRI ASSAM. 2.6:DULU BIBI (DAUGHTER) W/O- MOHAMMED ALI R/O- VILL. CHAR KUMARGATI P.O.- TISTERPAR Page No.# 4/9 DIST.- DHUBRI ASSAM. 2.7:LAILY BIBI (DAUGHTER) W/O- ABDUL AZIZ R/O- VILL. JHAGRARPAR PART-I P.O.- JHAGRARPAR DIST.- DHUBRI ASSAM. 3:ON THE DEATH OF KACHU SK. HIS LEGAL HEIRS- 3.1:AMENA BIBI (WIFE) R/O- VILL. SAGOLCHARA PART-I P.O.- SAGOLCHARA P.S. AND DIST.- DHUBRI ASSAM. 3.2:DELDAR ALI ( SON) R/O- VILL. SAGOLCHARA PART-I P.O.- SAGOLCHARA P.S. AND DIST.- DHUBRI ASSAM. 3.3:KAHIRAN BIBI (DAUGHTER) W/O- FAZLUL HOQUE R/O- VILL.- VELARGAON HOWRARPAR DIST.- DHUBRI ASSAM. 3.4:NACHIRAN BIBI (DAUGHTER) W/O- OLI ULLAH SK. R/O- VILL. JHAGRARPAR PART-I P.O.- JHAGRARPAR Page No.# 5/9 DIST.- DHUBRI ASSAM. 3.5:NAZIRA BIBI (DAUGHTER) W/O- SAHER ALI R/O- VILL. JHAGRARPAR PART-I P.O.- JHAGRARPAR DIST.- DHUBRI ASSAM. ------------ Advocate for : MR E HUSSAIN Advocate for : MR. S CHAUHAN (R-1.1 to 1.3) appearing for ON THE DEATH OF NURUL HUDA SARKAR AND 2 ORS BEFORE HONOURABLE MR. JUSTICE KALYAN RAI SURANA ORDER Date : 20.05.2026 Heard Mr. A. Rahman, learned counsel for the petitioner and Mr. S. Chauhan, learned counsel for the respondent nos. 1(A), 1(B) and 1(C). 2. As per order passed by the Lawazima Court on 14.08.2025, notice is deemed to be served on respondent Nos. 2(A) to 2(D), 2(F), 2(G), 3(B) to 3(E). 3. As per office note dated 18.05.2026, notice on respondent Nos. 2(B) and 3(A) could not be served as the said respondents are reported to be expired. 4. The petitioner herein is a third party to the execution proceeding is registered as Title Execution Case No. 2 of 2018, which is pending for disposal before the Court of learned Civil Judge (Senior Division), Dhubri. The said Page No.# 6/9 execution petition arises out of the ex parte judgment and decree dated 21.11.2016, passed by the said learned Court in T.S. No. 1 of 2016. The plaintiff/ decree holder put the decree to execution. The petitioner, who claims to have lawful title and possession over the decreetal land, had filed petition No. 1853 of 2022 under Order XXI Rule 97 read with Section 151 CPC by projecting that the decree holder on 10.08.2022, asked the petitioner to vacate the premises described in Schedule-B and informed the petitioner that he had purchased the entire Schedule-A land from one whose legal representatives have been impleaded herein. 5. Accordingly, the petitioner claims to have made enquiry and obtained a copy of the chitha on 25.08.2022 and came to learn that the predecessor-in- interest of respondent No. 2 had got the entire Schedule-A land mutated in his name. On 30.09.2022, the petitioner came to learn about the registered agreement for sale dated 02.05.2014 and thereafter, came to know about the ex parte decree dated 21.11.2016 in T.S. No. 1 of 2016 and accordingly, claiming possession over the Schedule-B land, said application was filed, claiming for a decree of declaration that the petitioner had right, title, interest and possession over Schedule-B property, being a part of the land described in Schedule-A and was entitled to get a patta for the Schedule-B land; for a decree of declaration that the sale agreement dated 30.09.2022 is illegal and void and is liable to be cancelled; and a decree for declaration that the judgment and decree passed in T.S. No. 1 of 2016 has no force in the eye of law. 6. 6. The learned Executing Court, vide order dated 01.02.2023, took notice of the fact that the Government and the Government Officers were not parties in the suit and therefore, the application was hit by Order XVII Rule 5(a) CPC Page No.# 7/9 read with Section 80 CPC read with Section 151 CPC are not maintainable, as the nature of decree prayed for cannot be decided without the Government being impleaded as a party. Accordingly, the learned Executing Court held that due to such formal defect, the petition was not maintainable. However, liberty was granted to the petitioner to file a separate suit to agitate his independent right over the suit land. The said order is assailed in this application filed under Article 227 of the Constitution of India. 7. The learned counsel for the respondent nos. 1(A), 1(B) and 1(C) opposes the prayer made in this revision. 8. On a perusal of the order impugned in this application, the Court is inclined to hold that the decision arrived at by the learned executing Court is based on logical reasoning and has taken into account the relevant law. As indicated above, the prayer in petition No. 1853 of 2022, being an application under Order XXI Rule 97 read with Section 151 CPC, amongst others, is to declare the petitioner to be entitled to get a patta in respect of the schedule land. The said decree cannot be allowed in the absence of the appropriate Government as one of the defendants. Therefore, the learned Executing Court has rightly held that in the absence of the appropriate government, the issue raised in the said petition cannot be effectively adjudicated. The said view of the learned executing Court does not warrant any interference. 9. The Court is restraint itself from examining the disputed question of fact as to whether or not the petitioner was in possession of the any part of the suit land. The same is because if any observation is made by this Court as regards possession, the same would prejudice either side. Therefore, it would not be appropriate for this Court, while examining the legality of the order dated Page No.# 8/9 01.02.2023 impugned in this application to make any observation as regards the claim of the petitioner to the possession of any part of the suit land. 10. The learned counsel for the petitioner has placed reliance on the provisions of Order XXI Rule 103 CPC to project that any order that is passed in an application or adjudication under Rule 98 or Rule 100 of Order XXI would have the same force as a decree. Accordingly, it was submitted that this present application be closed relegating the petitioner to file an appeal. Said submission has been considered. However, from the impugned order dated 01.02.2023, the Court does not find anything to arrive at a conclusion that the issue which was raised by the petitioner by petition No. 1853 of 2022 under Order XXI Rule 97 read with Section 151 CPC had been adjudicated, which conclusively determines the rights of the parties on any or all matters, as is required of a decree as defined under Section 2(2) of the CPC. The question as to whether a Civil Court can issue decree to grant patta, has to be examined as to whether such a prayer would be maintainable or not, but a direction to issue patta cannot be passed in the absence of the appropriate Government. 11. Therefore, as stated above, the Court finds that the impugned order dated 01.02.2023 is sustainable and there is no infirmity in the said order to hold the application filed vide petition No. 1853 of 2022 under Order XXI Rule 97 read with Section 151 CPC to be not maintainable in the present form. 12. There being no infirmity in the said order dated 01.02.2023, this application is without any merit and the same is dismissed. There shall be no order as to costs. 13. Before parting with the records, it is clarified that nothing contained in Page No.# 9/9 the order shall be construed to be a determination of any issue raised before this Court, save and except the determination regarding the legality of the impugned order dated 01.02.2023. JUDGE Comparing Assistant