Nilutpal Singha vs Joy Madhab Boruah
2022 Latest Caselaw 2378 Gua

                                                                       Page No.# 1/3

GAHC010041042022




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

                                  Case No. : RSA/106/2022

            NILUTPAL SINGHA
            S/O- LATE TARUN SINGHA, R/O- HOSPITAL ROAD, WARD NO. VI,
            SIVASAGAR TOWN, NAGAR MAHAL MOUZA, P.O., P.S. AND DIST.
            SIVASAGAR, ASSAM, PIN- 785640.



            VERSUS

            JOY MADHAB BORUAH
            S/O- LATE SATYARAM BORUAH, R/O- KAKOTI GAON, BETBARI MOUZA,
            P.O. SUKAN PUKHURI, P.S. AND DIST. SIVASAGAR, ASSAM-785697.



Advocate for the Petitioner   : MR B BURAGOHAIN

Advocate for the Respondent : MR D N BHATTACHARYYA




                                   BEFORE
                    HONOURABLE MR. JUSTICE DEVASHIS BARUAH

                                         ORDER

Date : 19.07.2022

Heard Mr. P. Boiragi, the learned counsel appearing on behalf of the Appellant and Mr. B. C. Das, the learned Senior counsel assisted by Mr. D. N. Bhattacharya, the learned counsel for the Respondent.

This is an appeal under Section 100 of the Code of Civil Procedure against Page No.# 2/3

the judgment and order dated 08.02.2022 passed in Title Appeal No.01/2022 by the Court of the Civil Judge, Sivasagar, whereby the judgment and order dated 03.01.2022 passed in Misc. (J) Case No.22/2020 by the Court of the Munsiff No.1, Sivasagar was confirmed.

From a perusal of the impugned judgment as well as the records enclosed to the instant proceedings, it would clearly go to show that the Appellant herein is the son of one Late Tarun Singh who admittedly was the Defendant No.8 in Title Suit No.46/1989. It has been submitted by Mr. B. C. Das, the learned Senior counsel for the Respondent that vide a judgment and decree dated 25.09.2006, the Trial Court had dismissed the said suit. Thereafter, the appeal was preferred by the plaintiff in Title Suit No.46/1989.

Being aggrieved, the plaintiff of Title Suit No.46/1989 preferred an appeal which was registered and numbered as Title Appeal No.14/2006. During the pendency of the said appeal, the Defendant No.8 expired and the Appellant herein was substituted as the Respondent No. 8(a) in Title Appeal No.14/2006. The said appeal i.e. Title Appeal No.14/2006 was allowed vide the judgment and decree dated 05.06.2009.

Subsequent thereto, the Appellant herein alongwith his family members approached this Court in RSA No.140/2009. This Court, vide a judgment and order dated 24.01.2018 dismissed the said Second Appeal. He further submits that thereafter, the said judgment and decree dated 05.06.2009 attained finality and proceedings for execution of the said decree was filed before the Executing Court which was registered and numbered as Title Execution Case No. 2/2018. It is under such circumstances that the Appellant herein who was a judgment debtor had again approached the Executing Court by way of proceedings under Order XXI Rule 35/97/98/99/101 read with Section 151 of the Code. The said Page No.# 3/3

application was registered and numbered as Misc.(J) Case No.22/2020. The said facts are also available from a perusal of the impugned judgment and decree.

In view of the above, as the Appellant herein was a judgment debtor in Title Suit No.46/1989, the Appellant could not have preferred the application registered as Misc.(J) Case No.22/2020. Both the Courts had rightly rejected the said application on the ground of maintainability.

Considering the above, this Court is also of the opinion that there is no substantial question of law involved in the instant Second Appeal which can be formulated in the instant Second Appeal for which the instant Second Appeal stands dismissed.

JUDGE

Comparing Assistant