SHRI MRIDUL CHANDRA BORBORA Vs. SRI NARAYAN SAIKIA

JUDGEMENT

(1.) The order dated 25.2.2011 passed by the learned District Judge, Jorhat in Title Execution No. 1 of 2006 dismissing the execution case has been called in question in the present revision petition under Art. 227 of the Constitution of India. The aforesaid execution case was instituted by decree holder Mridul Chandra Borbora against the opposite party Nos. 1 to 8 herein for execution of a decree passed in Title Suit No. 44 of 2000. The decree was for recovery of khas possession evicting the defendants upon declaration of right of possession of the plaintiff over the suit land and also for mesne profit of Rs. 3000/ - along with interest @ 9% per annum from the date of decree till realization. The judgment debtors filed an application before the learned executing court challenging the execution on the ground that the aforesaid decree passed by the learned civil court was a nullity and so there was no question of execution of any decree at all. It was the case of the judgment debtors that the executing court may not have jurisdiction to go behind the decree but once it is established that a decree is a nullity in that event the executing court may refuse to execute the decree. According to them, this is a case of such nature. Reason being that the judgment debtors were original occupancy tenants under the decree holder within the mesneing of Sec. -5 of the Assam Temporarily Settled Areas Tenancy Act, 1971 (hereinafter referred to as Act). The landlord filed three rents cases against the tenant and obtained ex parte decree. Thereafter by putting the aforesaid decree in execution tenancy right of the occupancy tenant was sold in favour of the defendant No. 7 of the suit who did never get possession of the land and was not permitted to enter into the suit land. The landlord thereafter instituted the suit for declaration of their right of possession over the suit land and for declaration that defendants are trespassers and are liable to be evicted and also for realisation of money.

(2.) The learned trial court decreed the suit ex parte holding that the defendants are trespassers and that they are liable to make payment of Rs. 3000/ - as mesne profit to the plaintiffs within a period of 2(two) months from the date of decree, failing which interest @ 9% was also decreed from the date of decree till realisation . This being the position, the judgment debtors being the occupancy tenants is an admitted fact. Once they are occupancy tenants, they could not have been evicted by a decree as referred to above. The judgment debtors therefore claimed that suit itself was a nullity. It is their further case that in the meantime, the judgment debtors had acquired Maliki right under Sec. 23 of the Act.

(3.) The decree holder filed objection contesting the application filed under Sec. 47 of the Code of Civil Procedure and after hearing both sides, the learned executing court passed the order on 25.2.2011 holding that the decree itself was a nullity and that the execution proceeding is liable to be rejected. This order has been called in question in the present revision petition. I have heard Mr. A.C. Sharma, learned counsel for the petitioner and Mr. D. Baruah, learned counsel for the opposite party.