JUDGMENT :

SANJAY KUMAR MEDHI, J.

1. The present petition has been filed under Section 115 of the Code of Civil Procedure, 1908 read with Article 227 of the Constitution of India by which an order dated 05.01.2015 passed by the learned Munsiff No. 1, Nalbari in Title Execution No. 04/2014 has been put to challenge. By the aforesaid order, the Nazir was directed to go ahead with the execution and submit Report accordingly.

2. I have heard Shri D. Choudhury, learned counsel for the petitioner. I have also heard Shri P.S. Deka, learned Senior Counsel assisted by Shri B. Bhagawati, learned counsel for the respondent. The materials placed before this Court have been carefully examined.

3. The petitioner is the defendant and Judgment Debtor whereas the respondent is the plaintiff/Decree Holder. The impugned order dated 05.01.2015 has been filed in Title Execution No. 04/2014 on a petition filed by the Decree Holder.

4. Before going to the issue which has arisen for determination in this case, certain background facts of the case may be put down as follows.

5. The respondent as plaintiff had instituted Title Suit No. 49/1995 for declaration of tenancy right and for confirmation of possession over the suit land along with injunction. The said suit however was dismissed vide judgment dated 23.06.1999 and decree dated 30.06.1999. Which however was the subject matter in an appeal before the learned Civil Judge (Senior Division), Nalbari which was registered as TA No. 7/1999. The respondent thereafter preferred RSA before this Court which was registered as RSA No. 4/2000 which was however allowed vide an order dated 15.02.2008. This Court in paragraph 16 of the aforesaid judgment has held as follows:

“16. Accordingly, I am of the opinion that this second appeal is liable to be entertained and the impugned judgment and decree passed by the trial Court and the First Appellate Court are liable to be set aside and quashed. Ordered accordingly. Consequently, the decree sought by the plaintiffs in T.S. No. 49/95 be granted.”

6. In the petition for execution, the Decree Holder has prayed for execution of the decree which was for declaration of right, title, interest, khas possession and injunction and the schedule of the decreed land was also given.

7. To the aforesaid application, the Judgment Debtor/petitioner had filed an objection in which it was stated that there was no prayer for decree of khas possession not even the decree of confirmation of possession of the suit land. It was also submitted that the suit land was all along in the possession of the Judgment Debtor and therefore, the decree was sought to be executed in a manner which is not permitted by law. It was submitted that the Executing Court cannot go behind the decree.

8. The petition viz. namely, T. Ex. No. 4/2014 was heard and the order dated 05.01.2015 was passed by the learned Munsiff No. 1, Nalbari. The learned Court had held that the judgment and decree passed by the Trial Court as well as the First Appellate Court were set aside and quashed by this Court and granted the decree sought by the plaintiff. The learned Court also observed that the Title Suit No. 49/1995 was filed by the plaintiff for declaration of tenancy rights, for confirmation of possession over the suit land along with injunction. Therefore, in terms of the judgment of the High Court dated 06.01.2012, the Nazir of the Court was directed to go for execution.

9. Shri D. Choudhury, learned counsel for the petitioners has strenuously argued that an Executing Court cannot go behind the decree and the relief being for confirmation of possession, in the name of execution of the decree, the Judgment Debtor cannot be dispossessed. In other words, it is submitted that in absence of a prayer for recovery of khas possession of the suit land, the Executing Court cannot go to that extent of the matter.

10. In support of his submissions, Shri Choudhury, learned counsel has placed before this Court a judgment of the Hon’ble Andhra Pra