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2022 Latest Caselaw 2768 Gua

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GAHC010150242022




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

                        Case No. : CRP(IO)/172/2022

         TINKU CHAWRA AND 3 ORS.
         S/O LATE MAGDU CHAWRA, R/O KHATKHATI BAGICHA GAON, P.O.-
         MORAN (KHATKHATI), P.S.-MORANHAT, DIST-CHARAIDEO, ASSAM

         2: BITUL CHAWRA
          S/O LATE MAGDU CHAWRA
          R/O KHATKHATI BAGICHA GAON
          P.O.-MORAN (KHATKHATI)
          P.S.-MORANHAT
          DIST-CHARAIDEO
         ASSAM

         3: RAMU CHAWRA
          S/O LATE MAGDU CHAWRA
          R/O SUKANPHUKURI
         WARD NO. 1
          P.O.-SEPON
          P.S.-MORANHAT
          DIST-CHARAIDEO
         ASSAM
          PIN-785673

         4: RABIN CHAWRA
          S/O LATE MAGDU CHAWRA
          R/O SUKANPHUKURI
         WARD NO. 1
          P.O.-SEPON
          P.S.-MORANHAT
          DIST-CHARAIDEO
         ASSAM
          PIN-78567

         VERSUS
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            KULESH TALUKDAR
            S/O LATE MAHESWAR TALUKDAR, R/O SEPON BAZAR, P.O.-SEPON, P.S.-
            MORANHAT, DIST-CHARAIDEO, ASSAM, PIN-785673



Advocate for the Petitioner   : MR. B K DAS

Advocate for the Respondent :




                                   BEFORE
                    HONOURABLE MR. JUSTICE DEVASHIS BARUAH

                                          ORDER

Date : 05.08.2022

Heard Mr. B.K. Das, the learned counsel appearing on behalf of the Petitioners.

Issue notice returnable 9th of September, 2022.

Steps upon the Respondent by way of registered post with A/D as well as by usual process within 3(three) days from today.

The Petitioners are further directed to take steps upon the Respondent by way of dasti routed through the Registry of this Court and file an affidavit of service on or before the next date.

It appears that the Petitioners herein being aggrieved by the judgment and decree dated 13/8/2018 passed in Title Suit No.11/2015 had preferred a Title Appeal No.2/2022 alongwith Misc.(J) Case No. 3/2022 for condoning the delay of 672 days as well as had also filed an application for stay of the Title Execution Case No.6/2021, which was registered and numbered as Misc.(J) Case No. 4/2022. The First Appellate Court vide an order dated 7/7/2022 issued notice on the application for condonation of delay and fixed 8/8/2022 for SR.

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Vide a separate order dated 7/7/2022, the learned District Judge was of the opinion that in view of the provisions of Order XLI Rule 3A of the Code of Civil Procedure, the question of considering the stay application at that stage did not arise for which the application for stay was disposed off. However, from a reading of the said order, it transpires that if a separate application is being filed after condonation of delay, the First Appellate Court shall take into consideration such application for stay of the execution proceedings.

Be that as it may, the Petitioners being aggrieved by the order dated 7/7/2022, by which the First Appellate Court refused to pass any order, has approached this Court under Article 227 of the Constitution, which was registered as CRP(IO) No.148/2022. This Court did not entertain the petition on the ground of withdrawal, however, this Court gave the liberty to the Petitioners to approach the Executing Court by filing appropriate application in that regard. In terms thereto, an application was filed under Order XXI Rule 26 of the Code of Civil Procedure (for short "the Code") before the Court of the Civil Judge, Charaideo at Sonari which was registered and numbered as Misc. (J) Case No. 5/2022. However, vide an order dated 25/7/2022, the Executing Court rejected the said application under Order XXI Rule 26 of the Code on three grounds i.e.

(i) Non-taking of steps upon the opposite party, (ii) for non- submission of the certified copies of the orders of the superior Court and (iii) for not showing sufficient cause under Order XXI Rule 26.

The learned counsel for the Petitioners submits that the first ground is totally perverse inasmuch as the copies of the said petition was duly furnished at the time of filing of the said application. As regards the second ground of non-submission of the certified copies of the orders of the superior Court, the learned counsel submits that as the said application was filed in a hurry, Page No.# 4/4

downloaded copies of the orders were duly filed, However, the Petitioners could have been given an opportunity, for which the Court ought not to have rejected the petition on that ground. On the third ground as regards not showing sufficient cause under Order XXI Rule 26, the learned counsel appearing on behalf of the Petitioners submits that a perusal of the petition would clearly show that various grounds have been assigned, for which the stay was being sought for.

Upon hearing the learned counsel for the Petitioners, this Court is of the opinion that the Petitioners have been able to make out a prima facie case. Under such circumstances, this Court deems it proper to stay further proceedings of Title Execution Case No. 6/2021 till the next date. Further to that, this Court also in the interest of justice directs the District Judge, Charaideo on the basis of a certified copy of this order being produced before the said court to take up the application for condonation being Misc.(J) Case No. 3/2022 on an urgent basis and take appropriate steps for disposal of the said application within the next returnable date. It is further made clear that depending upon the decision so taken by the District Judge, if the delay is condoned, the Petitioners shall be at liberty to file an application for stay of the execution proceedings.

List accordingly.

JUDGE

Comparing Assistant