JUDGMENT :

1. The present application has been filed under section 115 read with section 151 of the Civil Procedure Code, 1908 (‘CPC’) against an order dated 14.8.2019 passed in Misc. (J) Case No. 100 of 2015 arising out of Title Execution No. 5 of 2010 by the Court of the Munsiff No. 1, Kamrup (M). Though this case has been listed for motion, it was filed in the year, 2019 itself and the contesting respondents had entered appearance and it appears that as per an undertaking given on 1.10.2019, the connected executing proceedings is stayed.

2. A brief description of the facts of the case would be necessary to decide the issue raised in this petition.

3. The respondent No. 1 who is the decree holder had filed an Execution application being Title Execution Case No. 05 of 2010 before the learned Court of Munsiff No. 1, Kamrup. The decree in question dated 8.1.1999 passed in Title Suit No. 73 of 1998 was an ex parte one against the present petitioner, who is a Judgment-Debtor. It transpires that initially that an application was filed for setting aside the ex parte decree which was rejected against which the present petitioner had preferred an appeal. The Appellate Court, however, had allowed the same and had set aside the ex parte decree. Against the said Judgment of the Appellate Court, the present respondent had filed a civil revision petition before this court when the Judgment of the Appellate Court was interfered with and the ex parte decree of the year 1999 was upheld and it is this decree which has been put to execution resulting in passing of the impugned order dated 14.8.2019 which is the subject-matter of this petition.

4. I have heard Shri J. Deka, learned counsel for the petitioner. I have also heard Shri S.P. Roy, learned counsel for the contesting respondent No. 1, who has also filed an affidavit.

5. Shri Deka, the learned counsel for the petitioner has submitted that the impugned order dated 14.8.2019 is wholly unreasonable and has been passed without any application of mind. The rejection of the application filed under section 47 of the CPC on the ground of ‘constructive res judicata and ‘res judicata’ is absolutely unreasonable and suffers from legal infirmity. Shri Deka, learned counsel has drawn the attention of this court to the first application filed under section 47 of the CPC in which petition No. 205/15 was also filed on 28.1.2015. In the said petition, apart from the legal grounds which were taken in the Misc. Case No. 654/2011, the factual aspects were narrated to demonstrate that the decree in question was not executable. The learned court, however, vide order dated 13.3.2015 had rejected the said Misc. Case 654/2011. The learned court had taken into consideration that in the peculiar circumstances, filing of 2 execution case was permitted as the records of the earlier execution case were missing. The categorical finding of the court was that in absence of any challenge to the decree, no fault can be attributed for filing the Execution Case No. 05/2010 as the record of the earlier Title Execution Case No. 07/1999 was found to be missing after an enquiry. Thereafter, the present petitioner had instituted another application under section 47 of the CPC which was registered as Misc. (J) Case No. 100/2015. The said miscellaneous case was objected to by the present respondents by filing written objection and the learned court vide the impugned order dated 14.8.2019 has rejected the said miscellaneous case on the principal ground that the same was barred by ‘constructive res judicata’ and ‘res judicata’. The learned court took into consideration the provisions of section 11 of the CPC, more particularly Explanation (iv) to the same. The learned court had come to the finding that the grounds which were mentioned in the said Misc. (J) Case No. 100/2015 challenging the executability of the decree are the ground which might and ought to have been made grounds of attack in the former Misc. (J) Case under section 47 of