Gauhati High Court
Page No.# 1/6 vs Arbesh Ali And Ors on 31 March, 2022
Page No.# 1/6
GAHC010210842021
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : CRP/69/2021
NURUL ISLAM LASKAR AND 6 ORS.
S/O. LT. MAKADDAS ALI LASKAR, VILL. DOLIDAHAR, NAYAGRAM, P.S.
SERISPORE, DIST. HAILAKANDI, ASSAM, PIN-788164.
2: NAZRUL ISLAM LASKAR
S/O. LT. MAKADDAS ALI LASKAR
VILL. DOLIDAHAR
NAYAGRAM
P.S. SERISPORE
DIST. HAILAKANDI
ASSAM
PIN-788164.
3: SARUL ISLAM LASKAR
S/O. LT. MAKADDAS ALI LASKAR
VILL. DOLIDAHAR
NAYAGRAM
P.S. SERISPORE
DIST. HAILAKANDI
ASSAM
PIN-788164.
4: ANOWAR ISLAM @ HUSSAIN LASKAR
S/O. LT. MAKADDAS ALI LASKAR
VILL. DOLIDAHAR
NAYAGRAM
P.S. SERISPORE
DIST. HAILAKANDI
ASSAM
PIN-788164.
Page No.# 2/6
5: NURUN NESSA
D/O. LT. MAKADDAS ALI LASKAR
VILL. DOLIDAHAR
NAYAGRAM
P.S. SERISPORE
DIST. HAILAKANDI
ASSAM
PIN-788164.
6: SIFATUN NESSA @ SURATUN
S/O. LT. MAKADDAS ALI LASKAR
VILL. DOLIDAHAR
NAYAGRAM
P.S. SERISPORE
DIST. HAILAKANDI
ASSAM
PIN-788164.
7: RENU BIBI
W/O. LT. MAKADDAS ALI LASKAR
VILL. DOLIDAHAR
NAYAGRAM
P.S. SERISPORE
DIST. HAILAKANDI
ASSAM
PIN-788164
VERSUS
ARBESH ALI AND ORS.
S/O. LT. REJAFAT ALI, VILL. CHIPARSANGAN, PORGANA HAILAKANDI,
DIST. HAILAKANDI, ASSAM, PIN-788801.
2:f) MUSSTT. DILWARA BEGUM LASKAR
W/O. SAHABUDDIN LASKAR
VILL. AND P.O. CHIPARSANGAN
DIST. HAILAKANDI
ASSAM
PIN-788801.
2:g) MUSSTT. FALWARA BEGUM CHOUDHURY
W/O. TAIBUR RAHMAN CHOUDHURY
VILL. SIBNARAINPUR
Page No.# 3/6
P.O. SIALTEK
DIST. HAILAKANDI
ASSAM
PIN-788802.
2:a) MD. NURUL HUDA LASKAR
S/O. LT. ANCHAR ALI
VILL. DOLIDAHAR
P.S. ALGAPUR
DIST. HAILAKANDI
ASSAM
PIN-788151.
2:e) MUSSTT. HUSNEARA BEGUM CHOUDHURY
W/O. ISMAIL ALI CHOUDHURY
VILL. DOLIDAHAR
P.O. CHIPARSANGAN
DIST. HAILAKANDI
ASSAM
PIN-788151
2:d) MUSSTT. JUFAIRA BEGUM CHOUDHURY
W/O. MD. SIRAJ UDDIN CHOUDHURY
VILL. CHIPARSANGAN
P.O. CHIPARSANGAN
P.O. JANKI BAZAR
DIST. HAILAKANDI
ASSAM
PIN-788801.
2:ON THE DEATH OF ANCHAR ALI
HIS LEGAL HEIRS-
2:c) MD. BADRUL HUDA LASKAR
S/O. LT. ANCHAR ALI
VILL. DOLIDAHAR
P.S. ALGAPUR
DIST. HAILAKANDI
ASSAM
PIN-788151.
2:b) MD. FAKRUL HUDA LASKAR
Page No.# 4/6
S/O. LT. ANCHAR ALI
VILL. DOLIDAHAR
P.S. ALGAPUR
DIST. HAILAKANDI
ASSAM
PIN-788151
Advocate for the Petitioner : MR. N H MAZARBHUIYAN
Advocate for the Respondent :
BEFORE
HONOURABLE MR. JUSTICE HITESH KUMAR SARMA
ORDER
Date : 31-03-2022
Heard Mr. NH Mazarbhuiyan, learned counsel for the petitioners.
This Court, vide order, dated 04.03.2022, had recorded that service upon the
respondents have been complete. However, none appears for the respondents
today.
This civil revision petition has been filed under Section 115 of the Code of
Civil Procedure (CPC) read with Article 227 of the Constitution of India for
setting aside the order, dated 28.10.2021 passed by the learned Munsiff No. 2,
Hailakandi in Title Execution Case No. 06/2004 rejecting the prayer for staying
further proceedings of the execution case till disposal of Misc. (J) Case No.
23/2021 by which the legal heirs of the deceased/judgment debtors are sought
to be impleaded.
On perusal of the impugned order, it appears that the judgment debtor No. 2
had filed an application before the learned Executing court that judgment debtor
No. 7 Abdul Nur Mira expired leaving behind his legal heirs although the decree
holder has not brought them on record and the execution proceeding has been
Page No.# 5/6
proceeded with even against the deceased/judgment debtor No. 7.
Mr. Mazarbhuiyan, learned counsel for the petitioners has submitted,
referring to the document filed with the application at page 35, that the process
server had reported earlier that summon upon the defendant No. 24 could not
be served as he expired. He has submitted that even during the continuance of
the trial of Title Suit No. 47/1999, pending (at that point of time) in the court of
the learned Munsiff No. 1, Hailakandi, the defendant No. 24 was not alive.
That being so, if the submissions so made are found to be correct then the
judgment and decree was passed even against a dead person. On the other
hand, in the order impugned in this application, it has categorically been stated
that the judgment debtor No. 7 expired and his legal heirs have not been
brought on record in the execution proceeding.
Taking into account such facts, in the considered view of this Court, to pass
an effective and legally enforceable order in the execution proceeding, the
learned court below shall pass an appropriate order on making necessary
enquiry as to whether the defendant No. 24 in the aforesaid Title Suit died
during the pendency of the said suit and whether the judgment debtor No. 7
expired during pendency of the execution proceeding. However, it is made clear
that the decree holder, if present in the proceeding, be directed to take
appropriate steps for bringing on record the legal heirs of the deceased
judgment debtor. The necessary procedure be observed by the learned court
below while disposing of an application to be filed afresh by the petitioners
before the learned Executing court with respect to bring on record the heirs of
the deceased judgment debtor as well as in respect of the fact of death of the
defendant No. 24 in the suit mentioned above.
Taking this view, the impugned order dated 28.10.2021 passed by the
Page No.# 6/6
Executing Court in Title Execution Case No. 06/2004 is set aside. It is directed
that till a decision is taken as regards death/bringing on record the legal heirs,
etc of the judgment debtor/defendant on the application to be filed, as directed,
no further proceeding in the Execution case aforesaid.
Interim order granted earlier on 10.12.2021 stands vacated.
With the above observations and directions, this petition stands disposed
of.
JUDGE
Comparing Assistant
