Page No.# 1/13 GAHC010242242025 2026:GAU-AS:7233 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : CRP(IO)/445/2025 ON THE DEATH OF OMOR ALI HIS HEIRS AND REPRESENTATIVES BAHAR ALI AND 5 ORS S/O- LATE OMOR ALI, R/O- VILL.- KHUDRA POITARI, P.S. LAKHIPUR, P.O. CHUNARI, DIST. GOALPARA, ASSAM, PIN- 783129. 2: SAHAR ALI S/O- LATE OMOR ALI R/O- VILL.- KHUDRA POITARI P.S. LAKHIPUR P.O. CHUNARI DIST. GOALPARA ASSAM PIN- 783129. 3: ABDUL AZIZ S/O- LATE OMOR ALI R/O- VILL.- KHUDRA POITARI P.S. LAKHIPUR P.O. CHUNARI DIST. GOALPARA ASSAM PIN- 783129. 4: ABDUL HANIF S/O- LATE OMOR ALI R/O- VILL.- KHUDRA POITARI P.S. LAKHIPUR P.O. CHUNARI DIST. GOALPARA ASSAM PIN- 783129. 5: MUSSTT OMELA KHATUN D/O- LATE OMOR ALI Page No.# 2/13 R/O- VILL.- KHUDRA POITARI P.S. LAKHIPUR P.O. CHUNARI DIST. GOALPARA ASSAM PIN- 783129. 6: MUSSTT HAJERA KHATUN D/O- LATE OMOR ALI R/O- VILL.- KHUDRA POITARI P.S. LAKHIPUR P.O. CHUNARI DIST. GOALPARA ASSAM PIN- 783129 VERSUS INSAN ALI S/O. HAZI MOINUDDIN, R/O.- VILL. JOYBHUM, P.S. LAKHIPUR, P.O. JOYBHUM, DIST. GOALPARA, ASSAM, PIN- 783129. Advocate for the Petitioner : MR. A C SARMA, MR G BHARADWAJ,MR B DEORI Advocate for the Respondent : MR. A RAHMAN, MR. A IKBAL,MR. A RAHMAN,MS S SIDDIQUA,FOR CAVEATOR BEFORE HONOURABLE MR. JUSTICE ROBIN PHUKAN ORDER Date : 25.05.2026 Heard Mr. A.C. Sarma, learned Senior Counsel, assisted by Mr. G. Bharadwaj, learned counsel for the petitioners. Also heard Mr. A. Ikbal, learned counsel for the respondent. 2. In this petition, under Article 227 of the Constitution of India, the petitioners have challenged the orders dated 04.07.2022 and 13.10.2025, Page No.# 3/13 passed by the learned Civil Judge (Junior Division) No. 2, Goalpara, in Title Execution Case No. 4/2011. 3. It is to be noted here that vide impugned order, dated 04.07.2022, the learned Civil Judge (Junior Division) No. 2, Goalpara (‘executing Court’, for short) had directed to start the execution proceeding and vide impugned order, dated 13.10.2025, it had dismissed the petition No. 269/2022, filed by the petitioners under Section 47, read with Section 151 of the CPC. 4. Mr. Sarma, learned Senior Counsel for the petitioners, submits that the decree holder/respondent herein, as plaintiff had instituted a suit, being Title Suit No. 94/1979, against the judgment debtor/ petitioners herein, for declaration of his right, title and interest over the suit land and for permanent injunction, against the defendant Nos. 2, 3, 4, 5 and 7, and thereafter, the suit was decreed on 18.04.1984, but, the said decree was not executed for 27 years. Mr. Sarma also submits that the judgment debtor and their predecessor, have been in possession of the suit land since 1960 and the decree holder had no possession of the suit land and therefore, the decree holder did not think of executing the decree of injunction for a long time. Mr. Sarma further submits that the judgment debtors due to their peaceful and continuous possession of the suit land, filed a title suit bearing No. 24/2003, against the present decree holder and accordingly, the said Title Suit No. 24/2003, was decreed vide judgment and decree, dated 31.12.2004, and thereafter, the defendants including the present decree holder filed an appeal, being Title Appeal No. 14/2005, before the Court of learned Civil Judge and the learned Civil Judge, vide judgment and decree, dated 14.09.2005, had affirmed the decision of the learned trial Court on all the issues except the issue of setting aside of the judgment and decree in Title Suit No. 94/1979. Page No.# 4/13 4.1. Mr. Sarma also submits that the effect of the judgment passed in Title Suit No. 24/2003, and Title Appeal No. 14/2005, is that the judgment debtors of the instant execution case, who have perfected the title in the suit land by adverse possession and the decree along with the decree of permanent injunction, making the instant decree of the decree holder a nullity, and as such in- executable, and that there is a clear and categorical finding in the judgment passed in Title Suit No. 24/2003 and Title Appeal No. 14/ 2005 that it is the present judgments debtors who have been in continuous physical possession of the suit land and therefore, the decree sought to be executed is in-executable as per law and on such count, the title execution case is liable to be dismissed. 4.2. Mr. Sarma also submits that the report of the Nazir dated 18.12.2021, submitted pursuant to an order of the court indicates that the present judgments debtors, not the decree holder, are in physical possession of the suit land and therefore, the present decree, dated 14.09.2005, is in-executable and as such, the execution case is liable to be dismissed. Mr. Sarma further submits that in Title Suit No. 24/2003, filed against the present decree holder, all the issues were decided in favour of the plaintiff/judgment debtor and the issue Nos. 6 and 7 bearing the question as to whether the decree passed in Title Suit No. 94/1979, was obtained fraudulently and was liable to be set aside, were decided in affirmative in favour of the present judgment debtor; and that that the issues on the counter claim set up by the present decree holder were decided in favour of the present judgment debtor and the counter claim set up by the present decree holder in Title Suit No. 24/2003, was accordingly dismissed. Mr. Mr. Sarma also submits that the suit land in Title Suit No. 24/2003 is the same with that of the present execution case, and the measurement, position and description of the land are also the same; and that since the last 27 Page No.# 5/13 years, the present decree holder could not show that the present judgment debtor was dispossessed from the suit land and therefore, the right of the present decree holder has been extinguished on the ground of adverse possession over the suit land by the present judgment debtor, and as such, the decree sought to be executed is a nullity and therefore, the learned executing Court has no jurisdiction to execute the same. 4.3. In support of his submission, Mr. Sarma has referred to the following decisions: (i) Hameed Joharan (Dead) and Ors. vs. Abdul Salam (Dead) by LRs. and Ors., reported in (2001) 7 SCC 573. (ii) Kuldip Kaur vs. Satnam Singh, reported in (2018) 2 ICC 459. (iii) Kanwar Singh Saini vs. High Court of Delhi, reported in (2012) 4 SCC 307. (iv) Ishwar Sharan alias Ishwar Sharan Das (dead) and Anr. vs. Bharat Kumar and Ors., in Civil Revision No. 49/2022. 4.4. Notably, in the case of Kanwar Singh Saini(supra) Hon’ble Supreme Court held that in case there is a grievance of non-compliance with the terms of the decree passed in the civil suit, the remedy available to the aggrieved person is to approach the execution court under Order 21 Rule 32 CPC which provides for elaborate proceedings in which the parties can adduce their evidence and can examine and cross-examine the witnesses as opposed to the proceedings in contempt which are summary in nature. It has also been held that execution of an injunction decree is to be made in pursuance of Order 21 Rule 32 CPC as the CPC provides a particular manner and mode of execution and therefore, no other mode is permissible. Page No.# 6/13 4.5. In Hameed Joharan (Dead)(supra), Hon’ble Supreme Court and in Kuldip Kaur(supra), Punjab and Haryana High Court respectively have dealt with Article 136 of the Limitation Act, 1963. In the case of Hameed Joharan (supra), it has been held that Article 136 of the Act of 1963 prescribes a twelve-year period certain and what is relevant for Article 136 is, as to when the decree became enforceable and not when the decree became executable. 4.6. In the case of Ishwar Sharan alias Ishwar Sharan Das (dead) (supra) Allahabad High Court has held that a single revision can lie against several impugned orders, if the nature of the orders are same. 5. On the other hand, Mr. Ikbal, learned counsel for the respondent, submits that the land mentioned in Title Suit No. 24/2003, and the instant execution proceeding are different, and that in respect of the execution of the decree, passed in favour of the decree holder on 18.01.1984, the judgment debtor had filed an objection petition on 04.02.2022, which was heard and decided on 04.07.2022, and accordingly, the said objection petition was rejected, and till date, no revision petition was filed by the judgment debtor. But, on the same subject matter, the petition No. 269/22, was filed on 06.08.2022, by the same judgment debtors and hence the said petition is barred by the principle of res- judicata, under Section 11 of the CPC. Mr. Ikbal also submits that the decree holder is being disturbed in his peaceful possession over the decretal land, and therefore, he had filed a petition for execution of the decree, and there is no limitation period for execution of a decree of permanent injunction. Mr. Ikbal further submits that when the judgment debtor disturbed the peaceful possession of the decretal land, the respondent herein had instituted the execution proceeding, even though 27 years had elapsed in the meantime, and that against the decision passed in Title Appeal No. 14/2005, the judgment Page No.# 7/13 debtors did not file any appeal and that is the reason why on the confirmation of the judgment and decree passed in Title Suit No. 94/1979, the decree holder is entitled to the benefit of permanent injunction, which cannot be challenged by the judgment debtors in the execution proceeding. Mr. Iqbal referring to a decision of Hon’ble Supreme Court in Dagadabai v. Abbas, reported in (2017) 13 SCC 705, also submits that - it is a settled principle of law of adverse possession that a person, who claims title over the property on the strength of adverse possession and thereby wants the Court to divest the true owner of his ownership rights over such property, is required to prove his case only against the true owner of the property and that it is equally well settled that such person must necessarily first admit the ownership of the true owner over the property to the knowledge of the true owner and secondly, the true owner has to be made a party to the suit to enable the Court to decide the plea of adverse possession between the two rival claimants. Mr. Ikbal also submits that the plea of nullity of the decree is vague in nature, and under such circumstances, he has contended to dismiss this petition. 5.1. In support of his submission, Mr. Ikbal has referred to the following decisions: (i) Aainuddin Dewan vs. Haran Ali and Ors., reported in (2000) 2 GLT 121. (ii) Bhudev Mallick alias Bhudeb Mallick and Anr. vs. Ranajit Ghoshal and Ors., reported in 2025 0 Supreme(SC) 300. (iii) Bhanu Kumar Jain vs. Archana Kumar and Ors., reported in (2005) 1 SCC 787. (iv) Kalyani Swain and Ors. vs. Bijay Kumar Swain and Ors., in CMP No. 153 of 2024. (v) Dipali Biswas and Ors. vs. Nirmalendu Mukherjee and Ors., reported in AIR 2021 SC 4756. Page No.# 8/13 6. Having heard the submissions of learned counsel for both the parties, this Court has carefully gone through the petition and the documents placed on record, and has also perused the impugned orders dated 04.07.2022 and 13.10.2025, and the decisions referred to by learned counsel for both the parties. 7. It appears that the learned executing Court, vide impugned order, dated 13.10.2025, had held that the execution proceeding is not barred by the law of limitation in view of Article 136 of the Limitation Act, which prescribes the limitation period of execution of decree by clarifying that an application for the enforcement of execution of a decree granting a perpetual injunction shall not be subject to period of limitation, and that Section 50 of the CPC deals with execution of decrees of all kinds, including that of permanent injunction. The learned executing Court further held that after filing of the execution proceeding, the learned counsel for the judgment debtor had filed a written objection with a prayer to dismiss the execution suit as the instant suit is not executable under provisions of CPC, and that the objection filed by the judgment debtor is not tenable. 7.1. While deciding the issue of res-judicata, the learned executing Court had discussed the judgment of the this Court in Ashutosh Kundu vs. Laksheswar Talukdar, reported in 2018 (2) GLT 900, and thereafter, applying the ratio laid down in the said decision, in the title execution case, it had held that the subject matter and the matter in issue in the objection petition. And in the petition bearing No. 269/22, are directly and substantially the same, and thereafter, dealing with the issue of nullity of the decree passed in Title Suit No. 94/1979, the learned executing Court had relied upon the judgment of this Court in PN Pharma Marketing Service Pvt. Ltd. (M/S) and Another Page No.# 9/13 vs. Nicholas Piramal India Limited (M/S), and held that the executing Court cannot go beyond the decree and it has to execute the decree as it is. Thereafter, relying upon a decision of Supreme Court in Rafique Bibi (D) By L.Rs vs. Sayed Walledudin (D) BY L. Rs and Others, reported in AIR 2003 SC 3789, the learned executing Court had held that decree, not in- executable as being without jurisdiction or a nullity, rather can be termed as illegal decree on account of procedural irregularity and a plea not taken before passing decree cannot be allowed to be raised during execution proceeding. 7.2. Further, relying upon another decision passed of Hon'ble Supreme Court in the case of Vasudev Dhanjibhai Modi vs. Raja Bhai Abdul Rehman and Others, reported in (1970) 1 SCC 670, the learned executing Court has held that objection as to its validity may be raised in an execution proceeding, if the objection appears on the face of the record. But, where the objection as to jurisdiction of the Court to pass decree does not appear on the face of the record and requires examination of the questions raised and decided at the trial or which would 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. Thereafter, it had held that the Court has no jurisdiction to entertain the objection as to the validity of the decree at that stage as the same was not apparent on the face of the record and requires examination of the questions raised and decided at the stage of trial, and that since the plea of nullity of the decree was not taken during appeal, the Court has no jurisdiction to declare the decree passed as nullity at that stage. 7.3. Further, the learned executing Court had held that though the plea of continuous possession of the suit land was taken by the judgment debtor and the decree holder had no possession over the suit land and therefore, the right Page No.# 10/13 of the present decree holder is extinguished in virtue of adverse possession over the suit land by the present judgment debtor, and thereafter, held that Section 144 is applicable to case of dispossession pending suit or where the decree is varied or reversed in appeal and post decree dispossession in a decree for permanent injunction needs to be redressed in an inquiry under Order 21 Rule 32 of the CPC after dispossession. 7.4. And based on the ratio laid down by the High Court of Andhra Pradesh in Kumapatri Mariymma, Krishna vs. Godavari Rup Kr. Krishna, reported in AIR online 2024 AP 478, and that there is no time limit for an application under Order 21 Rule 32 of the CPC. Thereafter, the learned executing Court had held that since the present judgment debtor made fresh encroachment on the disputed land, the decree holder came before the appropriate forum after 27 years and Article 136 of the Limitation Act prescribes no time period for filing of any petition, and thereafter, it had rejected the petition. 8. It is not in dispute that the decree in Title Suit No. 94/1979, was passed about 27 years back and the Title Execution Case No. 4/2011, was instituted after 27 years. Indisputably, no limitation period is prescribed under Article 136 of the Limitation Act for filing any petition for execution in respect of a decree for permanent injunction. 9. Though, Mr. Sarma, learned Senior Counsel for the petitioners submits that the question of res-judicata does not arise, yet the said submission left this Court unimpressed in view of the decision of Hon’ble Supreme Court in Y.B. Patil vs. Y.L. Patil, reported in (1976) 4 SCC 66, wherein it has been held that it is well settled that principles of res-judicata can be invoked not only in separate subsequent proceedings, they also get attracted in subsequent stage Page No.# 11/13 of the same proceedings. Once an order made in the course of a proceeding becomes final, it would be binding at the subsequent stage of that proceeding. Similar is the observation in the case of Bhanu Kumar Jain (supra) and in the case of Kalyani Swain (supra). 10. Though Mr. Sarma, learned Senior Counsel for the petitioners has pointed out that the earlier application was not filed under Section 47 of the CPC, but it appears that though the Section is not the same, yet the contents of the petition and the prayer being made are same and in that view of the matter and also applying the ratio in the case of Y.B. Patil(supra), it can logically be concluded that the principle of res-judicata is applicable in the given factual scenario of the case in hand and the learned executing court had rightly applied the same. This court has carefully gone through the decision referred by Mr. Sarma, and finds that the ratio laid down in the said cases would not come into his assistance for the reason discussed herein above. 11. Thus, the submission of Mr. Sarma, learned Senior Counsel for the petitioners is that by filing a subsequent suit, the right, title and interest of the petitioners are perfected and also it is perfected by the adverse possession, left this Court unimpressed in view of the fact that there is categorical finding of the learned executing Court that the petitioners had dispossessed the decree holder, subsequently, and the issue has to be addressed under Order 21 Rule 32 CPC. 12. This court has also gone through the other decisions referred by Mr. Iqbal, learned counsel for the petitioner and finds that the same also strengthened his submission. In the case of Aainuddin Dewan (supra) a co-ordinate bench of this court had dealt with issue of injunction and restoration of possession. It has been held para No.7 as under:- Page No.# 12/13 “7. I am in respectful agreement with the decisions quoted above. It is the duty and responsibility of the court to see that an order of injunction passed by it is meticulously implemented/followed, otherwise an order of injunction will be a mere paper tiger without having the force to bite. That is not the purpose for granting an order of injunction. An order of injunction creates certain rights and liabilities between the parties and that order of injunction must be enforced by the court by passing necessary order. That is also necessary to shorten the litigation inasmuch as if that is not done, by executing a decree for perpetual injunction, a person may be put in possession on a particular date and on the next date, by using muscle power the Defendant may again take back the possession of the land. It cannot be the object or the purpose of law. In such a situation, a person so dispossessed is not to go again for a fresh round of litigation to establish his right, and to get the order for recovery of possession. He can approach the court by filing necessary application u/s 151 of CPC to obtain an order for restoration of possession and the court in such a situation can always give back/restore the possession.” 12.1. In the case of Dipali Biswas (supra) Hon’ble Supreme Court has held that a judgment debtor cannot be allowed to raise objections as to the method of execution in installments. After having failed to raise the issue in four earlier rounds of litigation, the appellants cannot be permitted to raise it in subsequent stages. Thus, the proposition laid down in the aforesaid cases also strengthened the submission of Mr. Ikbal. 13. In the result, having examined the impugned orders in the light of the submissions of learned counsel for both the parties and the decisions referred by them, and also in the given facts and circumstances, this Court finds no merit in this petition and accordingly, the same stands dismissed, leaving the parties Page No.# 13/13 to bear their own costs. 14. Interim order passed earlier, if any, stands vacated. JUDGE Comparing Assistant