Jahanara Begum @ Jahanar Ahmed Vs Sufia Khatun and 7 Ors.

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GAHC010001692026

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2026:GAU-AS:6664

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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

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Case No : CRP(IO)/341/2025

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JAHANARA BEGUM @ JAHANAR AHMED W/O LATE ABDUL ROUF VILL- CHENGA MUSOLMANPARA P.S.- TARABARI DIST- BARPETA ASSAM PIN-781301. PRESENT ADDRESS- VILL- KUKARPAR P.O.- KHONGRA P.S.- SARTHEBARI DIST- BARPETA ASSAM PIN-781305 VERSUS SUFIA KHATUN AND 7 ORS W/O NOOR HUSSAIN VILL- KUKARPAR P.O.- KHONGRA P.S.- SARTHEBARI DIST- BARPETA ASSAM PIN-781305 2:MALEK ALI S/O AHMED ALI R/O VILL- KUKARPAR P.O.- KHONGRA

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P.S.- SARTHEBARI DIST- BARPETA ASSAM PIN-781305 3:SAHED ALI S/O TONSER ALI R/O VILL- KUKARPAR P.O.- KHONGRA P.S.- SARTHEBARI DIST- BARPETA ASSAM PIN-781305 4:HALIM ALI S/O TONSER ALI R/O VILL- KUKARPAR P.O.- KHONGRA P.S.- SARTHEBARI DIST- BARPETA ASSAM PIN-781305

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5:MOTIOR RAHMAN S/O OMAR ALI R/O VILL- KUKARPAR P.O.- KHONGRA P.S.- SARTHEBARI DIST- BARPETA ASSAM PIN-781305

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6:MOKSHED ALI S/O OMAR ALI R/O VILL- KUKARPAR P.O.- KHONGRA P.S.- SARTHEBARI DIST- BARPETA ASSAM PIN-781305

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7:MUSLEM ALI S/O OMAR ALI R/O VILL- KUKARPAR P.O.- KHONGRA P.S.- SARTHEBARI DIST- BARPETA ASSAM

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PIN-781305

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8:SAMARUDDIN S/O OMAR ALI R/O VILL- KUKARPAR P.O.- KHONGRA P.S.- SARTHEBARI DIST- BARPETA ASSAM PIN-781305 -----------Advocate for : MR. M U MAHMUD Advocate for : MR. M A SHEIKH (R-1) appearing for SUFIA KHATUN AND 7 ORS

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BEFORE HONOURABLE MR. JUSTICE KALYAN RAI SURANA

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ORDER

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Date : 14.05.2026

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Heard Mr. M.U. Mahmud, learned counsel for the petitioner as well as Mr. M.A. Sheikh, learned counsel appearing for the sole respondent.

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This present petition filed under Section 115 of the CPC read with Order XXI Rule 29 of the CPC, is one of the classic examples of how by approaching the Court, an execution petition can be delayed.

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It would be appropriate to mention that in connection with this petition, I.A. (Civil)/55/2026 was filed for vacating the stay. In connection with the said I.A.(Civil)/55/2026, the learned counsel for the respondent had stated that if the prayer made in the said interlocutory application is considered and the stay is vacated, the Court would be permitting the

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execution to proceed. Therefore, since execution of a decree was stayed, despite objection by the learned counsel for the respondent, this revision petition has been taken up for hearing.

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The background facts of this case is that the respondent had filed a suit before the learned trial Court seeking declaration of right, title and interest over Schedule “B” land; for decree of khas possession in respect of the Schedule “C” land by evicting the defendant nos. 1 and 2; for permanent injunction; for partition, etc. The said suit was dismissed vide judgment and order dated 01.02.2006 and aggrieved by the dismissal of the suit, the respondent no. 1, i.e., the plaintiff had filed Title Appeal No. 2/2006. However, the said appeal was dismissed by the learned District Judge, Barpeta by judgment and order dated 21.12.2012. The aggrieved respondent no. 1 preferred a second appeal which was registered as RSA/46/2014 and this Court by judgment and order dated 30.11.2021, set aside the decree of dismissal passed by the learned Trial Court as well as the First Appellate Court and the suit was decreed.

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In this petition, the case projected by the petitioner is that when the judgment and order dated 30.11.2021, was passed by this Court in RSA/46/2014, the defendant no. 2 had already died on 22.05.2021, the defendant no. 3, Hazarat Ali, had died in the year 2003 and defendant no. 12, Hayat Boxa, had died on 28.02.2021. Accordingly, it is projected that the decree was drawn against dead persons and therefore, the decree was a nullity. In the said context the learned counsel for the petitioner had referred to the provision of Order XXII Rule 4 and Order XXII Rule 5 of the CPC as well to Article 120 and Article 121 of the Schedule to the Limitation Act, 1963. In

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course of submission, the learned counsel for the petitioner had expressed apprehension that in guise of executing a decree, though the decretal land claimed was 2 (two) lechas for eviction, but there are reasons to apprehend that the petitioners may be evicted from their entire land.

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In the context of the death of the respondents in RSA 46/2014, referred to above, the learned counsel for the petitioner had submitted that the parties were related and residing in a contiguous and neighbouring houses and therefore, the respondent was well aware of the death of the said respondents nos. 2, 3 and 12 in RSA/46/2014.

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On a query of the Court, the learned counsel for the petitioners has submitted that in the proceedings of Title Appeal No. 2/2006, under Section 96 of the CPC, the respondent no. 2 in RSA/46/2014 was alive but the respondent no. 3 and 11 had died.

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In this revision petition, the judgment, order and decree passed in RSA/46/2014 is not under challenge. Nonetheless, there is no document on record to show that the learned counsel representing the respondent nos. 2, 3 and 11 in RSA/46/2014, had discharged their duty and obligation prescribed under Rule 10A of Order XII CPC to communicate to the Court about the death of a party. Therefore, at this stage whether the appellant in RSA46/2014 knew about the death or not is merely a matter of presumption that since they live nearby, it would be outside the jurisdiction of this Court while dealing with this instant case to presume that the appellant in RSA/46/2014 was aware of the death. Similarly, it is during the pendency of the RSA/46/2014, which was decided on 30.11.2021, the defendant no. 2 had expired on 22.05.2021. However, in connection with the proceedings of

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RSA 46/2014, nothing has been brought on record in this revision petition to show that that the learned counsel representing the respondent no. 2 had discharged his obligation and duty prescribed under Rule 10A of Order XXII of the CPC to communicate to the Court the death of defendant no. 2. Therefore, while clarifying that issue of abetment of the appeal is colateral challenge made in this revision petition, it is not for this Court in exercise of revisional jurisdiction under Section 115 to make any remark regarding the death of respondent nos. 2, 3 and 11 in RSA/46/2014, as this Court is not sitting over judgment and order and consequential decree passed in RSA/46/2014.

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Therefore, only issue as to whether objection as to execution would be within the confines of Section 47 of the CPC. In this regard, it is notice that the petitioner had already approached the learned Executing Court by filing an application under Section 47 of the CPC.

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As regards the issue raised in the application under Section 47 of the CPC, it is observed from the record that in the proceedings of I.A. (C) 1686/2025, Mr. M.U. Mahmud, the learned counsel appearing therein for the applicant had made a prayer that he would file an appropriate application before the Executing Court, which was allowed by order dated 28.05.2025, the said I.A. (C) 1686/2025 was disposed of. However, on a specific query from the Court the learned counsel for the petitioner has submitted that the said application is at Annexure-11 to this petition. Somehow the submissions do not inspire the confidence of the Court. As per order dated 18.04.2024, the learned Executing Court had recorded the receipt of an application under Section 47 CPC. However, Annexure-11 to this application is a Review Petition,

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which is numbered as Review Petition No. 124/2025, purportedly filed before the Court of learned Munsiff No. 1, Barpeta. From the verification and affidavit appended to the said Annexure-11, the date on which the verification and the affidavit were signed is 31.05.2025. However, the order of registration of an application under Section 47 read with Section 151 CPC is found to be recorded in the order dated 18.04.2024. Therefore, it is impossible that an application filed in 2025 would be registered and recorded in the order sheet of 18.04.2024. Therefore, what is the actual application which is filed under Section 47 is not available and could not be shown by the learned counsel for the respondent.

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Be that as it may, it is noticed that this Court by an order dated 28.05.2025, passed in I.A(Civil)/1686/2025 had recorded the query of the Court as to why an application under Section 47 of the CPC was not filed before the learned Executing Court. Accordingly, the said liberty was granted by order dated 28.05.2025 passed by this Court in I.A. (Civil)/1686/2025. The petition available at Annexure-11 to this petition is Review Petition No. 124/2025, which is an application under Order XLVII Rule 1 of the CPC and filed before the Court of Munsiff No. 1 at Barpeta. Therefore, it could not be deciphered as to the purpose of filing a Review Petition No. 124/2025, before the Court of learned Munsiff No. 1, when the Second Appellate decree was passed by this Court.

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Be that as it may as per the order sheet of Title Execution Case No.45/2022, an application under Section 47 read with Section 151 CPC is found to be recorded in the order dated 18.04.2024. The learned Executing Court is found to be proceeding with the proceedings of Title Execution Case

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No. 45/2022. There is a pendency of the said Title Execution Case No. 45/2022, wherein the issue relating to the Section 47 of the CPC is also pending. The petitioner, who is the judgment-debtor no. 1 in Title Execution Case No. 45/2022 has filed this application under Section 115 of the CPC read with Order XXI Rule 29. The prayer made in this revision petition is extracted below:-

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That this petition is filed bonafide in the interest of justice.

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Under the facts and circumstances stated above, it is most respectfully prayed that your Lordship would be pleased enough to admit this revision petition, issue notice to the respondents to show cause as to why the Title Execution Case No.45/2022, now pending before the Ld. Munsiff No. 1 at Barpeta, shall not be stayed till the final decision of Title Suit No. 369/2022, now pending before the Ld. Civil Judge (Jr. Division) No. 2 at Barpeta and causes being shown, if any, and after hearing the parties, be further pleased to make the rule absolute and/or pass such other order/orders as your Lordship may deem fit and proper in the interest of justice.

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Thus, from the nature of the prayer made in this revision, no order passed by the Executing Court has been challenged.

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Initially this Court is stated to have stayed the execution proceedings. However, the respondent, who is the decree holder, is stated to have approached this Court and this Court by an order dated 19.08.2025, passed in CRP(IO)/341/2025 stayed the execution proceedings. The respondent no. 1 then appeared in the proceedings and thereafter, this Court by order dated 15.10.2025, passed in the said CRP(IO)/341/2025, vacated the stay granted on the execution of Title Execution Case No. 45/2022. On an application made by the petitioner which was registered as I.A. (Civil)/3496/2025, this Court by order dated 04.12.2025, restored the order of stay of the proceedings of Title Execution Case No. 45/2022.

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As per the statement made by the learned counsel for the petitioner at the Bar we see no justification on the part of the petitioner to file an application for review in the execution proceedings and then come before this Court and make a prayer of stay of the execution proceedings.

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In this case without assailing any order passed by the learned Executing Court, the petitioner by this application filed under Section 115 read with Order XXI Rule 29 has prayed for stay of the execution proceedings. The proceedings under Rule 29 of Order XXI is for stay of the execution of the pending suit between the decree holder and judgment debtor but in this case it has not been shown by the learned counsel for the petitioner that any such suit is pending before any Court between the decree holder and judgmentdebtor.

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Therefore, the filing of this revision petition is nothing but sheer abuse of the process of Court. Nothing has been brought on record to show that second appellate decree passed by this judgment and consequential decree passed by this Court has been put to challenge. Therefore, the second appellate judgment and consequent decree has attained finality for all intents and purpose

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Therefore, although a collateral challenge is sought to be made to the decree on account of death of respondents nos. 2, 3 and 11, but though being a collateral oral challenge, as the petitioner has not shown that duty and obligation under Order XXII Rule 10A was discharged at the relevant stage, it cannot be accepted that the decree passed in RSA 46/2014 is a nullity. Thus, this revision is held to be not maintainable. Moreso, when there is nothing on record to show that the counsel holding the brief of the

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deceased respondents in RSA 46/2014, had discharged his/her, onus obligation and duty under Rule 10 A of Order XXII to inform the Court about the death.

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Therefore, in light of above, the learned Executing Court is requested to expeditiously decide the application under Section 47 of the CPC in T. Exe. Case No.45/2022.

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It would be appropriate to clarify that the question as to whether the decree passed in RSA 46/2014 is a nullity or not has been raised in this revision, but despite being put to notice of the same, the learned counsel continued to make submissions on the nullity of the decree for more than about 45 minutes, the Court has been compelled to delve on the point and decided the point.

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Having observed that by miscellaneous application frivolous revisions, the petitioner has been able to stall the execution of the decree, it would be appropriate to make a polite request to the learned Court of Munsiff No. 1, Barpeta, to make all endeavour to expeditiously dispose of the proceedings of Title Execution case No. 45/2022, keeping in mind that long delay in the process of execution renders the decree passed to be a paper decree only. Therefore, it is the request to the said learned Court to not give any unnecessary adjournments and to take up the matter as expeditiously as possible, subject to its convenience, taking into account the matters pending before the said learned Court. As this is only a request, the same should not be read as a direction of this Court.

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Accordingly, the Court having found no merit in this revision petition,

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which is frivolous, and the same is dismissed at a cost of Rs. 10,000/(Rupees Ten thousand only) against the petitioner, which if not paid to the respondent within one month, shall become recoverable and/ or realizable in T. Ex. Case No. 45/2022.

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JUDGE

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Jahanara Begum @ Jahanar Ahmed v. Sufia Khatun and 7 Ors.

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Jahanara Begum @ Jahanar Ahmed v. Sufia Khatun and 7 Ors.

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