JAKIRUL ISLAM Vs. KARIFUDDIN

JUDGEMENT

(1.) Heard Mr. M.A. Sheikh, learned counsel for the appellants and Mr. A.R. Sikdar, learned counsel for the respondents.

(2.) The respondents are the decree holder in respect of a judgment and decree dtd. 9/3/2009 in Title Suit No. 112/2007 passed by the Court of learned Munsiff, Bilasipara at Dhubri, which had been confirmed by the judgment and order dtd. 1/11/2011 in RSA No. 277/2011. Accordingly, for execution of the decree, Title Ex. Case No. 03/2011 had been instituted by the respondents in the Court of learned Munsiff, Bilasipara at Dhubri. The present petitioners/appellants claiming adverse possession over the suit land involved in the decree in favour of the respondents filed an application under Order XXI Rule 97 and 101 of the CPC read with Sec. 47 of the CPC resisting the execution of the decree. Order XXI Rule 101 makes it explicit that an application under Order XXI Rule 97 or Rule 99 shall be determined by the Court in respect of all questions including questions relating right, title and interest of the property arising between parties and not by a separate suit for the purpose. Accordingly, it has to be understood that the application under Order XXI Rule 97 read with Sec. 47 of the CPC would have to be understood to be a proceeding in the nature of a suit. The application of the petitioners/appellants under Order XXI Rule 97 and 101 read with Sec. 47 of the CPC was rejected by the order dtd. 17/9/2019 in Misc. (J) Case No. 65/2012 passed by the Court of learned Munsiff, Bilasipara at Dhubri.

(3.) On dismissal of the resistance to the execution of decree under Order XXI Rule 97 and 101 read with Sec. 47 of the CPC, the appellants instituted an appeal under Sec. 96 read with Order XLI of the CPC which was registered as Misc. Appeal No. 16/2019. The Misc. Appeal No. 16/2019 was determined by the learned appellate Court being the Court of the Civil Judge (Sr. Div.), Dhubri by the judgment dtd. 5/8/2022. The very first paragraph of the judgment dtd. 5/8/2022 provides as extracted: