JUDGMENT :

The aforesaid two petitions being connected, were heard together and are disposed of by this common judgment and order. In the first petition, the petitioner has put to challenge the action of the learned Executing Court which had executed the judgment and decree dated 09.03.2009 passed in Title Suit No. 6/2002. The petitioner alleges that the same was executed without affording a reasonable time to the judgment debtor which was required as per the decree. The petitioner has further alleged that the same was done to frustrate the scope to challenge the legality and validity of the principal judgment and decree of the learned Trial Court which was affirmed by the learned Appellate Court.

2. The subsequent case registered as CRP/472/2016 has been filed by invoking the provisions Article 227 of the Constitution of India against the judgment and decree dated 09.03.2009 passed by the learned Court of the Munsiff No. 1, Tinsukia in Title Suit No. 6/2002 whereby a degree of ejectment has been passed against the petitioner. The said judgment and decree has also been affirmed by the learned Civil Judge, Tinsukia in Title Appeal no. 4/2009 vide judgment dated 05.12.2016. The aforesaid orders, as indicated above, are the subject matter of challenge in the subsequent case.

3. Since, the subject matter of CRP/472/2016 is the primary challenge against the judgment and decree, the same is taken up for consideration first as the result would also govern the issue involved in CRP/471/2016.

4. Before going to the issue which has arisen for determination in the two cases, the bare facts of the case may be put down as follows.

5. The petitioner is the defendant in the suit which was instituted for ejectment of the defendant who was the tenant under the respondent plaintiff. The suit was instituted mainly on the ground of the petitioner (tenant) being a defaulter.

6. Considering the nature of the argument which has been advanced and the grounds of challenge, the discussion of the facts are limited to the extent of those being relevant to the ground of argument.

7. The learned Trial Court had framed the following issues for determination-

i. Whether the suit is maintainable in law and in fact?

ii. Whether the plaintiff have right to sue?

iii. Whether there is cause of action?

iv. Whether defendants are the tenants under the plaintiff?

v. Whether the plaintiff is entitled to the reliefs as claimed?

vi. To what relief the parties are entitled to?

8. The primary contention of Shri S. Banik, learned counsel for the petitioner is that there was no specific issue on the aspect of default and therefore the learned Trial Court had erred in giving a finding on the said aspect in absence of any issues. Shri Banik, the learned counsel however has been fair enough to draw the attention of this Court to paragraph 13 of the plaint which specifically pleads the aspect of "defaulter". The learned counsel however submits that the issue not being framed, no finding could have been given by the learned Trial Court.

9. The learned counsel for the petitioner has drawn the attention of this Court to the provisions of Order XIV Rule 13 as well as Order XV Rule 1 of the Code of Civil Procedure, 1908 (hereinafter the CPC). Order XIV Rule 1 lays down the requirement of framing of issues in particular, Rule 1(iii) has been pressed into service which states that every materials proposition affirmed by one party and denied by the other shall form the subject of a distinct issue. As per Order XV Rule 1, if it appears that the parties are not in issue, the Court my at once pronounce judgment.

10. As reflected above, the thrust of the argument made on behalf of the petitioner is that since no issue has been framed on the aspect of default in payment of rent, no finding could have been given. The learned counsel for the petitioner accordingly submits that the aforesaid error would go into the root of the matter which would vitiate the entire judgment and decree and consequently the app