Gauhati High Court
Debobrata Saha vs Nibedita Das And 6 Ors on 27 January, 2021
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GAHC010008872021
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : CRP/2/2021
DEBOBRATA SAHA
S/O- LT. SURESH CHANDRA SAHA, R/O- SUBASHNAGAR, KARIMGANJ
TOWN, P.O., P.S. AND DIST.- KARIMGANJ, ASSAM
VERSUS
NIBEDITA DAS AND 6 ORS.
D/O- LT. SAROJ KUMAR DAS, RESIDING AT LAXMI CHARAN ROAD,
KARIMGANJ, WARD NO. 5, P.O. AND P.S. AND DIST.- KARIMGANJ, PIN-
2:NABANITA DAS
D/O- LT. SAROJ KUMAR DAS
RESIDING AT LAXMI CHARAN ROAD
KARIMGANJ
WARD NO. 5
P.O. AND P.S. AND DIST.- KARIMGANJ
PIN-
3:BISWAJIT BHATTACHARJEE
S/O- LT. PARESH BHATTACHARJEE
R/O- SUBASHNAGAR
KARIMGANJ TOWN
P.O. AND P.S. AND DIST.- KARIMGANJ
PIN-
4:MEERA BHATTACHARJEE
D/O- LT. PARESH BHATTACHARJEE
R/O- SUBASHNAGAR
KARIMGANJ TOWN
P.O. AND P.S. AND DIST.- KARIMGANJ
PIN-
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5:SUPRIYA BHATTACHARJEE
D/O- LT. PARESH BHATTACHARJEE
R/O- SUBASHNAGAR
KARIMGANJ TOWN
P.O. AND P.S. AND DIST.- KARIMGANJ
PIN-
6:SHILA BHATTACHARJEE
D/O- LT. PARESH BHATTACHARJEE
R/O- SUBASHNAGAR
KARIMGANJ TOWN
P.O. AND P.S. AND DIST.- KARIMGANJ
PIN-
7:SHEEMA BHATTACHARJEE
D/O- LT. PARESH BHATTACHARJEE
R/O- SUBASHNAGAR
KARIMGANJ TOWN
P.O. AND P.S. AND DIST.- KARIMGANJ
PIN
Advocate for the Petitioner : MR. B C DAS
Advocate for the Respondent : MR. P K ROY
BEFORE
HONOURABLE MR. JUSTICE KALYAN RAI SURANA
ORDER
27.01.2021
Heard Mr. B.C. Das, learned Senior counsel assisted by Ms. S. Roy, learned counsel for
the petitioner. Also heard Mr. P.K. Roy, learned counsel for the respondent nos.1 and 2.
2. By this application under Article 227 of the Constitution of India, the petitioner has
assailed the order dated 07.01.2021 passed by the learned Munsiff No.1, Kamrup in Misc.
Case No.215/2020 in connection with T. Ex.6/2006, thereby rejecting the petition no.809/23
filed by the petitioner under Order XXI Rules 97, 99 and 101 of the CPC.
3. By the said order, while rejecting the said application the learned executing Court
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held that the petition was not maintainable and upon holding that the petitioner herein was
claiming their right over the decretal property under the title judgment debtors only.
4. The learned Senior counsel for the petitioners has submitted that the respondent
nos.3 to 7 were the judgment debtors and during the pendency of the execution proceeding,
they had surrendered their tenancy to one Malay Kar, a co-owner. Accordingly, it is submitted
that the said surrender by a tenant to land-owner cannot be termed as a transfer of property.
It is submitted that thereafter the said Malay Kar had agreed to sell the decreetal property to
the petitioner for valuable consideration after which the petitioner has already paid of an
amount as part payment and the petitioner was put into possession.
5. The learned counsel for the respondents has referred to the order dated
02.03.2020, annexed as Annexure 3 to this petition and it is submitted that the said Malay
Kar had previously filed petition no.784/2027 under Order XXI Rule 97 CPC which was
rejected by the learned executing Court on 29.01.2011. It is submitted that the right of the
said alleged co-owner has been extinguished by the rejection of his petition, as such, the
petitioner has no case at all.
6. In view of the issue raised, let a notice returnable on 04.02.2021 be issued.
7. In view of the projection made by the learned Senior counsel for the petitioner that
the respondent nos.3 to 7 had surrendered their tenancy to one of the co-owners, who in
turn put the petitioner into possession of the said premises after entering into an agreement
for sale, for time being and till further orders, issuance of notice on the said respondent nos.3
to 7 is exempted as they are not found to have any interest in the decretal property.
8. The learned counsel for the respondent nos.1 and 2 shall be at liberty to bring on
record any document on which he intends to rely by filing an affidavit. As a short date has
been fixed, liberty is granted to the said respondents to have the affidavit sworn and filed by
counsel on record or Advocate's clerk.
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9. As the notice is made returnable on a short date and in view of the projection
made by the learned counsel for the respondent, the Court is disinclined to pass any interim
order at this stage. However, both sides shall be at liberty to pray before the learned
executing Court to defer the matter till 04.02.2021 and on filing of such petition, the learned
executing Court shall defer the proceeding of T. Ex. No.6/2006 till 04.02.2021.
10. List on 04.02.2021.
JUDGE
Comparing Assistant
