Page No.# 1/8 GAHC010106572026 undefined THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : CRP(IO)/201/2026 ABDUL ROB SARKAR S/O LATE NABUATULLAH SARKAR, R/O VILL- NEWAJES PUR, P.O.- FULERCHAR, P.S.- SUKCHAR, DIST- SOUTH SALMAR MANKACHAR, ASSAM VERSUS MUSSTT. REZAUN NESSA AND ANR W/O LATE SORHAB ALI SARKAR, R/O VILL- CHAR KASARIPARA, P.O.- FULERCHAR, P.S.- SUKCHAR, DIST- SOUTH SALMARA MANKACHAR, ASSAM 2:REJAUL HOQUE S/O LATE RIAZUL HOQUE R/O VILL- MANKACHAR P.O. AND P.S.- MANKACHAR DDIST- SOUTH SALMARA MANKACHAR ASSA Advocate for the Petitioner : MR. R K JAIN, A TALUKDAR,TULIKA BORAH Advocate for the Respondent : MR A ISLAM (FOR CAVEATOR), BEFORE HONOURABLE MR. JUSTICE ROBIN PHUKAN ORDER 15.07.2026 Heard Mr. R.K. Jain, learned counsel for the petitioner and Mr. A. Islam, learned counsel for the caveator. Page No.# 2/8 2. In this petition, under Article 227 of the Constitution of India, the petitioner has challenged the order dated 25.03.2026, passed by the learned Civil Judge (Junior Division), Hatsingimari, South Salmara, Mankachar (executing court hereinafter), in Title Execution Case No. 03/2025, arising out of Title Suit No. 267/1997. 3. It is to be noted here that vide impugned order dated 25.03.2026, the learned executing court had dismissed the prayer for stay of execution case during the pendency of the Misc. (J) Case No. 41/2026, which was registered on the basis of an application filed by the petitioner under Order 21 Rule 97 of the CPC. 4. Mr. Jain, learned counsel for the petitioner, submits that the petitioner is the owner of a portion of the decretal land by virtue of an oral deed and while the execution proceeding, being Title Execution Case No. 03/2025, is pending before the learned executing court, the petitioner herein had filed an application, under Order 21 Rule 97 of the CPC and the said petition was admitted by the learned executing court, but the learned executing court has refused to stay the execution proceeding, till execution of the same. 4.1. Mr. Jain further submits that if without adjudicating the application filed under Order 21 Rule 97 of the CPC, the decree is executed, then it would cause serious prejudice to the petitioner. 4.2. In support of his submission, Mr. Jain has referred to a decision of Hon’ble Supreme Court in the case of Periyammal (Dead) through LRs. and Others vs. V. Rajamani and Another, reported in (2025) 9 SCC 568, especially paragraph Nos. 42 and 43 of the said judgment. 4.3. Mr. Jain also submits that it is well settled that when an application is filed, Page No.# 3/8 under Order 21 Rule 97 of the CPC, the court adjudicating such application have to dealt with the same in accordance with Rule 101 and hold a full-fledged inquiry to determine all the questions including the questions relating to right, title and interest in the property arising between the parties. Under such circumstances, Mr. Jain submits that if the proceeding is not stayed and in the meantime the decree is executed, then the application filed by the applicant would be infructuous and as such, the impugned order suffers from material irregularity and therefore, he has contended to allow this petition by setting aside the impugned order dated 25.03.2026. 5. Per-contra, Mr. Islam, learned counsel for the caveator, vehemently opposed the petition. He pointed out that the title suit, in respect of which the execution petition is going on, was initiated 27 years back and that the claim of the petitioner that he only came to know about the decree in the year 2026 is not at all believable as he admittedly resides within 200 yard from the house of the plaintiff (decree holder). 5.1. Mr. Islam further submits that the claim of the petitioner is barred by principle of res-judicate and constructive res-judicata and that he allegedly received the land from the proforma defendant, whose right title and interest has already been adjudicated and the same attain finality and that the petitioner has failed to produce any prima-facie material in support of his claim. Mr. Islam also submits that the learned executing court had passed a very reasoned order and the same suffers from no infirmity and irregularity and the same warrants no interference of this Court. 5.2. Mr. Islam also pointed it out that the judgment debtor had preferred one first appeal against the judgment and decree passed by the learned trial court and the same was rejected by the learned first appellate court. Thereafter, he Page No.# 4/8 preferred one second appeal before this court, being RSA No. 223/2016 and the same was dismissed by this Court, vide judgment dated 25.02.2025. Thereafter, the judgment debtor preferred one special leave petition before the Hon’ble Supreme Court, being Special Leave to Appeal (C) No. 19644/2025 and the same was dismissed vide order dated 25.07.2025 and thereafter, he had preferred one review petition, being Diary No. 50151/2025, against the order passed in the Special Leave to Appeal (C) No. 19644/2025, but the same was also dismissed, vide order dated 20.01.2026. Thereafter, the decree holder had instituted one execution proceeding before the learned executing court and then, the judgment debtor through the present petitioner had instituted a proxy litigation, by filing an application, under Order 21 Rule 97 of the CPC and that there was material contradiction in the same, wherein at paragraph No. 2 a stand has been taken that the land was gifted to him on 25.03.1993 and at paragraph No. 5 he has stated that he has been living in the suit premises by constructing his dwelling house since 10.06.1986, i.e. before the land was gifted to him. Thereafter, considering all these circumstances and having found no prima-facie material in favour of the petitioner, the learned executing court had refused to grant stay and therefore the same warrants no interference of this Court and contends for dismissing this petition.. 5.3. In support of his submission, Mr. Islam has also relied upon the decision of Hon’ble Supreme Court in the case of Periyammal (supra), especially paragraph No. 73. Mr. Islam also relied upon a decision of Hon’ble Supreme Court in the case of Challani Ginning and Pressing Factory vs. Kamal, in Civil Appeal No. 6525/2026. 6. Having heard the submissions of learned counsel for both the parties, this Court has carefully gone through the petition as well as the documents placed Page No.# 5/8 on record and also the impugned order dated 25.03.2026, passed by the learned executing court and also gone through the decisions relied upon by learned counsel for both the parties. 7. It is to be noted here that the learned executing court, in the impugned order dated 25.03.2026, had observed in paragraph No. 6 that ‘It is seen that the present petition has been filed by a third party claiming independent right and possession, which is yet to be established by cogent evidence. At this stage, no material has been brought on record to prima-facie establish the petitioner’s settled possession or such right as would warrant immediate interference with the execution proceeding. If the execution proceeding is kept in abeyance at this stage solely on the basis of the untested claim of the petitioner, the same would result in undue delay in execution of a decree. On the other hand, no prejudice would be caused to the petitioner at this stage as his claim is being taken up for adjudication in the separate Misc. (J) case.’ Thereafter, the learned executing court had rejected the petition. 8. It is to be noted here that i paragraph No. 42, in the case of Periyammal (supra), Hon’ble Supreme Court had held that it is well settled proposition of law that an application under Order 21 Rule 97 of the CPC may be made in respect of obstruction raised by any person in obtaining possession of the decretal property. The courts adjudicating such application have to do so in accordance with rule 101 and hold a full-fledged inquiry to determine all the questions including the question relating to right, title and interest in the property arising between the parties. 8.1. In the said case, at paragraph No. 43, Hon’ble Supreme Court had Page No.# 6/8 discussed its earlier decision in the case of Brahmadeo Chaudhary vs. Rishikesh Prasad Jaiswal, reported in (1997) SCC 697, wherein it is held that a reading of Order 21 Rule 97 of the CPC clearly envisages that ‘any person’ even including the judgment debtor irrespective whether his claims derivative title from the judgment debtor or set up his own right, title or interest dehors the judgment debtor and he resists execution of a decree, then the court in addition to the power under Rule 35(3) has been empowered to conduct an enquiry whether the obstruction by that person in obtaining possession of immovable property was legal or not. The decree holder gets a right under Rule 97 to make an application against third parties to have his obstruction removed and an enquiry thereon could be done. Each occasion of obstruction or resistance furnishes a cause of action to the decree holder to make an application for removal of the obstruction or resistance by such person. 8.2. Further, in the said judgment, Hon’ble Supreme Court, at paragraph No. 74, had held that the mandatory direction contained in paragraph No. 42.12. in the case of Rahul S. Shah vs. Jinendra Kumar Gandhi, reported in (2021) 6 SCC 418, requiring the execution proceeding to be completed within six months from the date of filing, which has been reiterated by the Hon’ble Supreme Court in its order passed in the case of Bhoj Raj Garg vs. Goyal Education and Welfare Society and Others, in Special Leave Petition (C) No. 19654/2022. 9. In the instant case, while examining the impugned order in the light of the proposition laid down by Hon’ble Supreme Court in the case of Periyammal (supra) and also in the case of Brahmadeo Chaudhary (supra) and in the light of the submissions advanced by learned counsel for both the parties, this Page No.# 7/8 Court is of the view that the impugned order, so passed by the learned executing court, dismissing the petition for stay of the execution proceeding, suffers from no illegality or irregularity. 10. Merely because the petitioner herein has filed an application, under Order 21 Rule 97 of the CPC, he is not automatically entitled to get the execution proceeding stayed, while the learned executing court had recorded a categorical finding that no material has been brought on record to prima-facie establish the petitioner’s settled possession or such right as would warrant immediate interference with the execution proceeding and if the execution proceeding is kept in abeyance at this stage solely on the basis of the untested claim of the petitioner, as the same would result in undue delay in execution of a decree. 10.1. Over and above, the petitioner has been claiming right over the suit property through one of the proforma defendant, whose right over the suit property has already been adjudicated by the learned courts below and the same attain finality and in that view of the matter, the submission of Mr. Islam, learned counsel for the respondent, the petition filed by the petitioner, under Order 21 Rule 97 of the CPC, is barred by the principle of res- judicata/constructive res-judicata, as because the petitioner is not a totally stranger to the earlier litigation, he denied his alleged right from the party bound by the decree. He cannot, therefore, be allowed to collaterally attack or circumvent the final judgment. 11. It is to be noted here that in the case of Periyammal (supra), a direction was issued for disposing of the execution proceeding within a period of six months and in the instant case, the period of six months has already been elapsed. On this count also, no fault can be found with the impugned order, so Page No.# 8/8 passed by the learned executing court. 12. In the result, this Court finds no merit in this petition and accordingly, the same stands dismissed. However, the learned executing court is requested to make an endeavor to dispose of the application filed by the petitioner, under Order 21 Rule 97 of the CPC, as soon as practicable. 13. Interim order, if any, passed earlier, stands vacated. JUDGE Comparing Assistant