GAUHATI HIGH COURT ISSUES ORDER ON KALYANI PAUL AND 2 ORS V/S RASHESWAR PAUL

GUWAHATI, India, April 24 -- Gauhati High Court issued the following order on March 24:

1. Heard Mr. S.D. Purkayastha, learned counsel appearing for the petitioners. Also heard Mr. B.K. Sen, learned counsel appearing for the respondents.

2. The present revision petition under Section 115 of the Code of Civil Procedure, 1908 (CPC), is directed against the Judgment and Order dated 04.01.2024, passed by the learned Civil Judge (Sr. Div.) No.2, Cachar, Silchar in Misc. Appeal No.09/2019. By the said judgment the Appellate Court affirmed the order dated 15.11.2019, passed by the learned Munsiff No.2, Cachar, Silchar in Title Execution Case No.5/2014, whereby the application filed under Section 47 read with Section 151 of CPC by the judgment debtor was rejected.

3. The lis originates from Title Suit No.164/2007, instituted by the respondent seeking ejectment of the predecessor of the present petitioners. The suit was initially dismissed ex-party by Judgment and Decree dated 19.02.2011. However, in Title Appeal NO.16/2011 the First Appellate Court by Judgment and Decree dated 21.04.2014, reversed the Trial Court's decision and decreed the suit.

4. The said Decree was put to execution in Title Execution Case No.5/2014 (New No.59/2014). During execution the predecessor of the petitioners filed an objection petition under Section 47 CPC, contending that the decree was inexecutable on the ground of res judicata and lack of jurisdiction. The Executing Court rejected the objection, holding that it could not go behind the decree. The Appellate Court affirmed the same.

5. Mr. S.D. Purkayastha, learned counsel appearing for the petitioners contends that the decree sought to be executed is a nullity, having been passed without jurisdiction. It is urged that the Appellate Court wrongly applied the Assam Urban Areas Rent Control Act, 1972, although the tenancy pertained to land, thereby exceeding its jurisdiction. It is further contended that the issue stood concluded in earlier proceeding and is barred by res judicata.

6. Per-contra, Mr. B.K. Sen, learned counsel for the respondent submits that the plea of default had already been conclusively determined in Title Suit No.112/2004 which attained finality. It is argued that the Executing Court cannot re-examine such findings and no jurisdictional error has been demonstrated warranting interference under Section 115 CPC. In support of his submissions, he relies upon the decisions of the Apex Court in the case of Periyammal (Dead) through LRs. & Ors. Vs. V. Rajamani &Anr., reported in 2025 0 Supreme (SC) 461 and in the case ofSushil Kumar Mehta Vs. Gobind Ram Bohra (Dead) through his LRs., reported in (1990) 1 SCC 193.

*Rest of the document can be viewed at: (https://hcservices.ecourts.gov.in/ecourtindiaHC/cases/display_pdf.php?filename=bzPoyUlszYLCUcCpirIpqDuw2hXgOljN5%2B3U34cjndcD5qLlINmJn5ZPEYJwsqHX&caseno=CRP/27/2024&cCode=1&cino=GAHC010033252024&state_code=6&appFlag=)

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