Lalbabu Sah vs Dayananda Prasad
2021 Latest Caselaw 2871 Gua

                                                                                  Page No.# 1/5

GAHC010000652020




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

                                 Case No. : CRP(IO)/13/2020

            LALBABU SAH
            S/O- LATE LAKHI SAH, R/O- WARD NO. 6, NEAR TEZPUR ELECTRICITY
            BOARD (OLD POWER HOUSE), TEZPUR 784001, P.O- TEZPUR, P.S- TEZPUR,
            SADAR, DIST- SONITPUR, ASSAM

            VERSUS

            DAYANANDA PRASAD
            S/O- LATE RAMESWAR PRASAD, R/O- TEZPUR TOWN (NEAR GOPAL
            CYCLE STORE) MAIN ROAD, MOUZA- MAHABHAIRAV, P.O AND P.S-
            TEZPUR SADAR, DIST- SONITPUR, ASSAM, PIN- 784001


Advocate for the Petitioner   : MR. S P ROY

Advocate for the Respondent : MR. P SUNDI


                                   BEFORE
                    HONOURABLE MR. JUSTICE DEVASHIS BARUAH

                                           ORDER

Date : 15-11-2021

Heard Mr. S.P. Roy, the learned counsel appearing on behalf of the Petitioner as well as Mr. P. Sundi, the learned counsel appearing on behalf of the respondent.

2. Both CRP(I/O) No.13/2020 and CRP (I/O) No. 22/2021 are taken up together as both

relates to the same execution proceedings.

3. For the purpose of disposal of the instant petitions, the relevant facts are that the Page No.# 2/5

respondent herein had filed a suit being Title Suit No. 35/1996 before the Court of the

Munsiff at Tezpur seeking right, title and interest and recovery of possession against one

Dhanpal Gowala. The said suit was decreed by the judgment and decree dated 19/04/1999

passed in Title Suit No. 35/1996. Pursuant thereto, the respondent herein initiated the

execution proceedings, which was registered and numbered as Execution Case No. 14/1999.

The petitioner herein, who claims to be a third party initially filed a suit being Title Suit No.

155/2014 challenging the judgment and decree dated 19/04/1999 passed in Title Suit No.

35/1996; seeking a declaration that the petitioner was not in occupation of the decreetal land

as described in the judgment and decree dated 19/04/1999 passed in Title Suit No. 35/1996

and for permanent injunction. The said suit was dismissed in view of the bar contained under

Order XXI Rule 101 of the Code of Civil Procedure, 1908 and consequently an application was

filed under Section 47 read with Order XXI Rule 97, 98 and 101 of the CPC in the execution

proceeding.

4. It has been brought to my attention by Mr. P. Sundi, the learned counsel appearing on

behalf of the respondent that initially the petitioner had filed an application under Section 47

of the CPC in the execution proceeding in Title Execution Case No.14/1999, which was

registered as Misc.(J) Case No. 138/2009 and thereafter had again filed another application

under Section 47 read with Order XXI Rule 97, 98 and 101 of the CPC, which has been

registered and numbered as Misc.(J) Case No. 155/2014. Be that as it may, it may be relevant

to mention here that the said proceeding under Order XXI Rule 97, 98 and 101 registered

Misc. (J) Case No. 155/2014 was fixed for evidence and the petitioner had filed the evidence

on affidavit of the petitioner herein and has also filed an application under Order VII Rule 14

(3) of the CPC with a prayer to allow him to produce certain document on the ground that the Page No.# 3/5

said documents were not in possession of the petitioner at the time of filing the application

under Order XXI Rule 97, 98 and 101 of the CPC. The Court below by the impugned order

dated 07/08/2019 rejected the said application under Order VII Rule 14(3) and it is against

the said order, the petitioner is before this Court in CRP (I/O) No. 13/2020. Pursuant to the

said order passed by the Executing Court, the petitioner filed another application before the

Executing Court seeking adjournment on the ground that he would prefer an appeal against

the order dated 07/08/2019. The Court below taking into account that the petitioner had

already taken two numbers of adjournment for preferring an appeal before the High Court

rejected the said petition vide order dated 30/09/2019. Against the said order dated

30/09/2019, the petitioner is before this Court under Article 227 of the Constitution of India

which has been registered and numbered as CRP(I/O) No. 22/2021.

5. I have heard the learned counsel for the petitioner Mr. SP Roy in both the petitions as

well as Mr. P. Sundi, the learned counsel appearing for the respondents.

6. Mr. SP Roy the learned counsel submits that these documents for which leave was

sought for under Order VII Rule 14(3) of the CPC are very vital for adjudication of the

petitioner's right under Order XXI Rule 100 of the CPC, and as such, the non-granting of the

leave as sought for would severely prejudice the petitioner. Mr. Roy further submits that the

order dated 30/09/2019 on the face of it was erroneous, inasmuch as the Executing Court

could not have expunged the evidence of the PW as the case was not fixed for cross-

examination of the PW. He further submitted that on the date on which the order dated

30/09/2019 was passed, he upon instruction had already taken steps for filing an application

challenging the order dated 07/08/2019, and as such, it would have been in the interest of

justice that the Executing court could have waited for a few days and granted the Page No.# 4/5

adjournment.

7. Mr. P. Sundi, the learned counsel appearing on behalf of the respondent submits that

the judgment and decree for which the execution application was filed was passed on

19/04/1999 and as on date more than 23 years have already passed and the respondent is

yet to taste the fruits of the decree. He further submitted that the petitioner has been filing

application after application just for the purpose of delaying the execution of the case without

having any legal right in respect to the decreetal land. He further submits that the application

filed by the petitioner is barred under Order XXI Rule 104 of the CPC as the petitioner is a

transferee pendente lite.

8. I have heard the submissions on behalf of the petitioner.

9. From a perusal of the application under Order VII Rule 14, it appears that the

petitioner sought the leave to bring on record certain official documents marked as document

Nos. 1 to 6 to the application under Order VII Rule 14 and it is the specific submission of the

petitioner that he is presently in possession of the certified copies of the said documents. It is

also the case of the petitioner that those documents are very essential for the purpose of

establishing the legal rights of the petitioner in respect to the proceedings and if the said

documents are not allowed to be brought on record the petitioner shall be severely

prejudiced. The petitioner also submits that apart from the petitioner's witness, i.e., PW-1,

whose evidence on affidavit has already been filed, he would be adducing the evidence of

other witness and he is ready to file the evidence on affidavit of all the witness as and when

this Court directs.

10. I have given my anxious consideration to the submissions made by both the parties Page No.# 5/5

and taking into account that the documents mentioned in Sl. No. 1 to 6 of the application

under Order VII Rule 14 would be relevant as claimed by the petitioner, it would be in the

interest of justice that the said leave sought for as per the provisions of Order VII Rule 14 (3)

be granted. Accordingly, the said leave is granted by this Court thereby permitting the

petitioner to bring the documents on record mentioned at Sl. No. 1 to 6 to the said petition.

However, the admissibility of the said documents is left to be decided by the Executing Court

in terms with the provision of law. As regards the order dated 30/09/2019 passed by the

Executing Court, it is erroneous on the face of it as the Executing Court could not have

expunged the evidence on affidavit of the PW without the date fixed for cross examination of

the PW-1 and it could only have been done in the case when the PW-1 has not appeared, to

face his cross examination. Accordingly, the order dated 30/09/2019 is interfered with.

11. The parties are directed to appear before the Executing Court on 10/12/2021 and on

which date, Mr. Roy, the learned counsel for the petitioner undertakes upon instruction from

the petitioner that he would be filing the remaining evidence on affidavit on behalf of all the

petitioner without fail. Taking into account that the respondents are fighting for the last 23

years at the Execution stage, the Court below is directed to dispose off the instant execution

proceeding including the application filed by the petitioner under Order Xxi Rule 97, 98 & 101

of the CPC expeditiously and not later than 6(six) months from the date of appearance of the

parties. If necessary the Court below shall record the evidence and conclude the hearing on

day to day basis.

12. Accordingly, both the petitions are allowed. No costs.

JUDGE

Comparing Assistant