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2026 Supreme(Online)(Gau) 18440
HIGH COURT OF GAUHATI
Robin Phukan, J
Bahar Ali – Appellant
Versus
Insan Ali – Respondent
CRP(IO)/445/2025
For the Appellants/Petitioners: A C Sarma, G Bharadwaj, B Deori
For the Respondents: A Rahman, A Ikbal, S Siddiqua
The executing court is bound to execute the decree as it stands and cannot look behind it, nor can judgment debtors reopen closed issues at subsequent stages of execution proceedings due to the principle of res judicata.
Headnote:(A) Code of Civil Procedure, 1908 - Sections 47, 151 - Order 21, Rule 32 - Limitation Act, 1963 - Article 136 - Execution of permanent injunction decree - Principles of Res Judicata - Executing court cannot go behind decree - Application for restoration of possession where decree holder is dispossessed pending execution - No limitation for execution of permanent injunction decree. (Paras 7, 7.1, 7.2, 9, 10, 12)
Facts of the case:
Respondent (Decree Holder) obtained a decree for permanent injunction against the Petitioners (Judgment Debtors) in 1984. Execution was initiated in 2011. Petitioners filed objections under S. 47 CPC claiming the decree was inexecutable due to subsequent acquisition of title by adverse possession and prior judgments in other suits. The Trial/Executing court dismissed the objections, citing res judicata and the principle that the executing court cannot look beyond the decree. The petitioners challenged these orders in the High Court.
Findings of Court:
The High Court held that principles of res judicata apply to subsequent stages of the same proceeding, and that objections raised after previous rounds of litigation cannot be entertained. It affirmed that an executing court cannot look behind the decree, and that dispossession post-decree is to be addressed under O. 21, R. 32 CPC.
Issues: Whether the execution petition is barred by limitation, whether the principle of res judicata applies, and whether the executing court can declare an established decree a nullity.
Ratio Decidendi: An executing court must execute the decree as it stands and cannot go behind it. Principles of res judicata apply to subsequent stages of the same execution proceeding, preventing repetitive challenges to the validity or executability of the decree.
Result: Petition dismissed.
| Table of Content |
|---|
| 1. overview of the petition challenging execution court orders. (Para 1 , 2 , 3) |
| 2. petitioner's arguments regarding decree nullity and adverse possession. (Para 4) |
| 3. respondent's arguments on res judicata and limitation. (Para 5) |
| 4. executing court's findings on the decree's validity. (Para 7) |
| 5. high court's ruling on res judicata and enforcement of injunction. (Para 9 , 10 , 11 , 12 , 13) |
ORDER
Heard Mr. A.C. Sarma, learned Senior Counsel, assisted by Mr. G. Bharadwaj, learned counsel for the petitioners. Also heard Mr. A. Ikbal, learned counsel for the respondent.
2. In this petition, under Article 227 of the Constitution of India, the petitioners have challenged the orders dated 04.07.2022 and 13.10.2025, passed by the learned Civil Judge (Junior Division) No. 2, Goalpara, in Title Execution Case No. 4/2011.
3. It is to be noted here that vide impugned order, dated 04.07.2022, the learned Civil Judge (Junior Division) No. 2, Goalpara (‘executing Court’, for short) had directed to start the execution proceeding and vide impugned order, dated 13.10.2025, it had dismissed the petition No. 269/2022, filed by the petitioners under Section 47, read with Section 151 of the CPC.
4. Mr. Sarma, learned Senior Counsel for the petitioners, submits that the decree holder/respondent herein, as plaintiff had instituted a suit, being Title Suit No. 94/1979, against the judgment debtor/ petitioners herein, for declaration of his right, title and interest over the suit land and for permanent injunction, against the defendant Nos. 2, 3, 4, 5 and 7, and thereafter, the suit was decreed on 18.04.1984, but, the said decree was not executed for 27 years. Mr. Sarma also submits that the judgment debtor and their predecessor, have been in possession of the suit land since 1960 and the decree holder had no possession of the suit land and therefore, the decree holder did not think of executing the decree of injunction for a long time. Mr. Sarma further submits that the judgment debtors due to their peaceful and continuous possession of the suit land, filed a title suit bearing No. 24/2003, against the present decree holder and accordingly, the said Title Suit No. 24/2003, was decreed vide judgment and decree, dated 31.12.2004, and thereafter, the defendants including the present decree holder filed an appeal, being Title Appeal No. 14/2005, before the Court of learned Civil Judge and the learned Civil Judge, vide judgment and decree, dated 14.09.2005, had affirmed the decision of the learned trial Court on all the issues except the issue of setting aside of the judgment and decree in Title Suit No. 94/1979.
4.1. Mr. Sarma also submits that the effect of the judgment passed in Title Suit No. 24/2003, and Title Appeal No. 14/2005, is that the judgment debtors of the instant execution case, who have perfected the title in the suit land by adverse possession and the decree along with the decree of permanent injunction, making the instant decree of the decree holder a nullity, and as such in-executable, and that there is a clear and categorical finding in the judgment passed in Title Suit No. 24/2003 and Title Appeal No. 14/ 2005 that it is the present judgments debtors who have been in continuous physical possession of the suit land and therefore, the decree sought to be executed is in-executable as per law and on such count, the title execution case is liable to be dismissed.
4.2. Mr. Sarma also submits that the report of the Nazir dated 18.12.2021, submitted pursuant to an order of the court indicates that the present judgments debtors, not the decree holder, are in physical possession of the suit land and therefore, the present decree, dated 14.09.2005, is in-executable and as such, the execution case is liable to be dismissed. Mr. Sarma further submits that in Title Suit No. 24/2003, filed against the present decree holder, all the issues were decided in favour of the plaintiff/judgment debtor and the issue Nos. 6 and 7 bearing the ques
