Page No.# 1/3 vs Vijoy Chand Golacha And 2 Ors
2021 Latest Caselaw 3169 Gua

                                                                  Page No.# 1/3

GAHC010164782019




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

                          Case No. : CRP(IO)/231/2019

         SHANKAR BANIK AND 3 ORS.
         S/O. LT. NANI GOPAL BANIK, R/O. MADAN MOHAN ROAD, P.O.
         KARIMGANJ-788710, DIST. KARIMGANJ, ASSAM.

         2: RAMAJUJ BANIK
          S/O. LT. NANI GOPAL BANIK
          R/O. MADAN MOHAN ROAD
          P.O. KARIMGANJ-788710
          DIST. KARIMGANJ
         ASSAM.

         3: SMT. SUCHETA BANIK
         W/O. LT. SATYA GOPAL BANIK
          47 JHOWATIA ROAD
          BECK BAGAN
          BALLYGONGE
          KOLKATA-700017
         WEST BENGAL.

         4: SMT. NIBEDITA BANIK
         W/O. SRI SHAMBHU NATH BANIK
          OLD STATION ROAD
          P.O. KARIMGANJ-788711
          DIST. KARIMGANJ
         ASSAM

         VERSUS

         VIJOY CHAND GOLACHA AND 2 ORS.
         S/O. LT. CHANGANMAL GOLCHA, 176, JAMUNALAL BAJAJ STREET (BAR
         BAZAR), KOLKATA, WEST BENGAL.

         2:SMT. MAMOL DEVI
                                                                                   Page No.# 2/3

             W/O. LT. CHANGANMAL GOLCHA
             176
             JAMUNALAL BAJAJ STREET (BAR BAZAR)
             KOLKATA
             WEST BENGAL.

            3:M/S LALCHAND CHAGANMAL

             A REGD. PARTNERSHIP FIRM CARRYING ON BUSINESS AT EAST BAZAR
             P.O. KARIMGANJ-788711
             DIST. KARIMGANJ
             ASSAM

Advocate for the Petitioner   : MR. N DHAR

Advocate for the Respondent : MR G N SAHEWALLA




                                   BEFORE
                    HONOURABLE MR. JUSTICE DEVASHIS BARUAH

                                           ORDER

Date : 29-11-2021

Heard Mr. S.P. Choudhury, the learned counsel appearing for the petitioners and Mr. G.N. Sahewalla, the learned senior counsel appearing on behalf of the respondents assisted by Ms. S. Katakey, learned counsel.

This is an application under Article 227 of the Constitution of India challenging the order dated 08/07/2019 passed in Title Execution Case No. 1/2016, whereby the Executing Court had rejected the application filed by the petitioner seeking survey as well as adducing evidence and also issue the writ of possession thereby directing the Civil Nazir to execute the Decree by delivery of possession.

A perusal of the judgment and decree affirmed by this court shows that the plaintiffs were entitled to the possession of the Schedule - 4 property which measures 780 sq. ft. The said property from North to South is 65 ft. and from east to west is 12 ft.

Mr. Choudhury, the learned counsel appearing for the petitioner submits that the petitioners have no objection in so far as exercise of Decree in so far the Schedule-4 property Page No.# 3/3

is concerned, if it is done within the parameters of Schedule -4 property as described in the Execution Application. He further submits that the Executing Court while delivering the possession of the Schedule-4 property should not deliver the Schedule-3 property in respect to which there is no decree for delivery of possession.

In view of the above, the question of interference with the impugned order does not arise and accordingly the instant petition stands disposed off with an observation that the Executing Court while issuing the writ of possession directed the Civil Nazir to execute and deliver the possession of the Schedule -4 property to the plaintiffs/decree holders in accordance with the boundaries as mentioned in Schedule-4 of the execution application.

In view of the above, the instant petition stands disposed off. The interim order passed dated 2/8/2019 stands vacated and the parties are directed to appear before the Executing Court on 04/01/2022.

JUDGE

Comparing Assistant