The central legal point established in the judgment is the applicability of Order XXI Rule 29 of the CPC to the facts of the case and the emphasis on the lawful decree passed in favor of the respondents.

1. Heard Mr. P.J. Saikia, learned senior counsel assisted by Mr. R.S. Mishra, Advocate, appearing on behalf of the petitioner and Mr. N.C. Das, learned senior counsel assisted by Ms. M. Devi, learned counsel appearing on behalf of the respondents.

2. This application under Article 227 of the Constitution of India is filed by the petitioner challenging the order dated 25.08.2022, passed by the learned Executing Court, i.e. the Court of learned Munsiff at Naharkatia, Assam, in Title Execution Case No. 5/2019, whereby the application filed by the petitioner was rejected.

3. From a perusal of the materials on record, it reveals that the decree holders, as plaintiffs, had instituted a suit, being Title Suit No. 23/1975, against one Tankeswar Dowerah for recovery of khas possession of a premises which have been described in the Schedule to the plaint of the said suit. The said suit was decreed on 19.08.1994. It is relevant to mention that during pendency of the said suit, the defendant Tankeswar Dowerah expired and he was substituted by his wife, namely, Maichana Dowerah. Thereupon the said Maichana Dowerah, being aggrieved with the judgment and decree dated 19.08.1994 passed in the said Title Suit No. 23/1975, preferred an appeal before the First Appellate Court, which was registered and numbered as Title Appeal No. 15/1994. The said appeal was dismissed by a judgment and decree dated 31.05.1995. Thereupon a Second Appeal, being RSA No. 128/1995, was filed before this Court in the year 1995 and the same was dismissed on 31.10.2000. Upon dismissal of the second appeal, an Execution Application was filed on 16.06.2011, which was registered as Title Execution Case No. 11/2011. It is relevant to mention that while dismissing the Second Appeal, this Court categorically directed the appellant therein to vacate the decreetal property within a period of six months.

4. Pursuant to filing of the Execution Application in the year 2011, the grandsons of the original defendant, i.e. Late Tankeswar Dowerah, filed a suit in the year 2011, which was registered and numbered as Title Suit No. 49/2012, seeking a declaration that the decree obtained by the defendants therein was null and void, illegal, inoperative and un-executable due to fraud and misrepresentation and the defendants had no right, title and interest to execute the said decree; a declaration that the plaintiffs or their dependents and persons under them are not liable to be evicted from the suit premises described in the said decree as well as also for a perpetual injunction and stay of the execution proceedings, being Title Execution Case No. 11/2011. The said suit subsequently was re-numbered as Title Suit No. 4/2022. In view of the amendment to the Bengal, Agra and Assam Civil Courts Act, 1887 whereby the pecuniary jurisdiction of the Court was enhanced and, consequently, the said Title Suit filed by the petitioners was transferred to the Court of the learned Munsiff, Naharkatia. It is also relevant to take note from the relief sought for in the suit filed by the petitioners that prior to filing of the suit, an application was filed by the petitioners in the said execution proceeding under Order XXI Rule 29 of the Code of Civil Procedure, 1908 for stay of the execution proceedings. The said application was rejected by the learned court below vide order dated 28.05.2022 and it is under such circumstances the present application has been filed.

5. Mr. P.J. Saikia, learned senior counsel appearing on behalf of the petitioners has submitted that in view of the provisions of Order XXI Rule 29 CPC, the learned Executing Court ought to have stayed the decree in view of the pendency of Title Suit No. 49/2012, which was subsequently re-numbered as Title Suit No. 4/2022. He has submitted that if the order of stay of the execution proceeding is not passed, the suit, being Title Suit No. 4/2022, would become infructuous.

6. On the other hand, Mr. N.C. Das, learned senior counsel appearing on behal