GAHC010216212019 undefined THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

Case No. : CRP/137/2019 SAFINA KHATUN AND 2 ORS.

W/O MD. YUNUSH ALI @ EUNUSUR RAHMAN, R/O GANDHIBASTI, GUWAHATI-03, DIST. KAMRUP (M), ASSAM, 2: JEINA BEGUM W/O MD. RAMJAN ALI @SK. RAMZAN ALI R/O RAILWAY QUARTER MALIGAON GUWAHATI-11 DIST. KAMRUP (M)

ASSAM

3: FATIZA BEGUM W/O SYED MAHMUD ALI R/O SARUMOTORIA DISPUR GUWAHATI-0 VERSUS MOINUR ALI AND 2 ORS.

S/O LT. FULSHA SEIKH, R/O VILL. GARPANDU, KUMARPARA, MOUZA-

JALUKBARI, GUWAHATI-14

1.2:MAFIDA BEGUM AGED ABOUT 34 YEARS D/O LATE MD. MOINUR ALI R/O-KUMARPARA VILL- GARPANDU MOUZA JALUKBARI GUWAHATI-781014

1.3:REBI BEGUM AGED ABOUT 31 YEARS D/O LATE MD. MOINUR ALI R/O-KUMARPARA VILL- GARPANDU MOUZA JALUKBARI GUWAHATI-781014

1.4:MD SHAHIDUL AHMED AGED ABOUT 28 YEARS S/O LATE MD. MOINUR ALI R/O-KUMARPARA VILL- GARPANDU MOUZA JALUKBARI GUWAHATI-781014

2:AFTAB ALI S/O LT. FULSHA SEIKH R/O VILL. GARPANDU KUMARPARA MOUZA- JALUKBARI GUWAHATI-14 3:SHARIF ALI S/O LT. FULSHA SEIKH R/O VILL. GARPANDU KUMARPARA MOUZA- JALUKBARI GUWAHATI-14

3.1:SERAJAN NESSA AGED ABOUT 67 YEARS W/O LATE SHARIF ALI R/O KUMARPARA GUWAHATI-14 VILL GARPANDU MOUZA JALUKBARI GUWAHATI -781014.

3.2:SAJID ALI AGED ABOUT 37 YEARS S/O LATE SHARIF ALI R/O KUMARPARA GUWAHATI-14 VILL GARPANDU MOUZA JALUKBARI GUWAHATI -781014. 3.3:SABINA YASMIN AGED ABOUT 39 YEARS D/O LATE SHARIF ALI R/O KUMARPARA GUWAHATI-14 VILL GARPANDU MOUZA JALUKBARI GUWAHATI -781014 Advocate for the Petitioner : MR N DUTTA, MR A DEKA,N CHAUDHURY,MR. B D DEKA,R ALI,MS. L WAJEEDA,MR. M H SAIKIA,MR. N H MAZARBHUIYAN Advocate for the Respondent : P BURAGOHAIN (R-1.1,1.2,1.3,2, 3.1,3.2,3.3), MR M BARMAN BEFORE HONOURABLE MR. JUSTICE ROBIN PHUKAN J UDGMENT & O RDER (CAV )

23.04.2025 Heard Mr. B.D. Deka, learned counsel for the petitioners. Also heard Mr. J.

Prakash, learned counsel for the respondents.

2. In this revision petition, under Section 115 of the CPC, the petitioners have challenged the correctness or otherwise of the order dated 06.06.2019, passed by the learned Civil Judge (Senior Division) No. 3, Kamrup(M), Guwahati, in Misc. Case No. 324/2019, arising out of Title Execution Case No. 2/2009, allowing an application filed by the respondents under Section 47, read with Section 151 of the CPC.

3. It is to be noted here that vide impugned order dated 06.06.2019, the learned Civil Judge (Senior Division) No. 3, Kamrup(M), Guwahati (‘executing Court’, for short) had held that the decree passed by the learned predecessor of that Court is not enforceable, being obtained by playing fraud upon the Court.

4. The background facts, leading to filing of the present petition, are briefly stated as under:

“The petitioners had filed one title suit, being Title Suit No. 324/2003, before the Court of Civil Judge (Senior Division) No. 3, Kamrup(M), Guwahati and the said suit was decreed, vide judgment and decree dated 18.09.2007. Thereafter, the respondents had filed an appeal, being First Appeal No. 24/2009 before this Court, which was dismissed, vide judgment and order dated 10.07.2018. Thereafter, the plaintiffs/petitioners herein filed Title Execution Case No. 02/2009, for execution of the decree and then, the respondents/judgment debtors challenged execution of the decree by filing an objection under Section 47 of the CPC on the ground that the decree had been obtained by playing fraud. But, in fact, the claim of the respondents/judgment debtors is only in respect of the land of a separate Dag i.e. Dag No. 238, while the claim of the plaintiffs/petitioners are in respect of a separate Dag No. 240, in which the respondents had not advanced any claim, and that as per jamabandi of the patta and the survey report obtained by the Court, a plot of land measuring 1 katha 4 lechas of Dag No. 240 still remained after sale by the plaintiffs/petitioners, which had been encroached upon and being illegally possessed by the defendants/respondents. But, vide impugned order dated 0