Gauhati High Court
3: Smt Saroja Yadav vs On Death Of Nirmola Sundari Paul ... on 9 May, 2022
Page No.# 1/5
GAHC010221492019
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : CRP(IO)/308/2019
ON THE DEATH GANGA PRASAD YADAV HIS LEGAL HEIRS
S/O- LT JAGARURAM YADAV OF DUDHPATTY, COMMONLY KNOWN AS
JANIGANJ MAHABIR MARGE ROAD, P.O. AND P.S. SILCHAR, DIST-
CACHAR, ASSAM
1.1: SMT GULABI DEVI
WIFE OF LATE GANGA PRASAD YADAV
1.2: SRI BIJOY KUMAR YADAV
S/O LATE GANGA PRASAD YADAV
AGE 50 YEARS
1.3: SRI UMESH KUMAR YADAV
S/O LATE GANGA PRASAD YADAV AGE 44 YEARS
1.4: SRI MANOJ KUMAR YADAV
S/O LATE GANGA PRASAD YADAV AGE 42 YEARS
1.5: SRI PAPPU KUMAR YADAV
S/O LATE GANGA PRASAD YADAV AGE 38 YEARS
1.6: SRI BINOD KUMAR YADAV
S/O LATE GANGA PRASAD YADAV AGE 38 YEARS
1.7: SMT ANITA DEVI YADAV
DAUGHTER IN LAW OF LATE GANGA PRASAD YADAV W/O LATE AJOY
KUMAR YADAV AGE 45 YEARS
1.8: SRI ANAND KUMAR YADAV
GRANDSON OF LATE GANGA PRASAD YADAV S/O LATE AJOY KUMAR
YADAV AGE 26 YEARS
1.9: SRI KISHAN KUMAR YADAV
GRANDSON OF LATE GANGA PRASAD YADAV S/O LATE AJOY KUMAR
Page No.# 2/5
YADAV
AGE 23 YEARS
1.10: SRI ARJUN YADAV
GRANDSON OF LATE GANGA PRASAD YADAV S/O LATE AJOY KUMAR
YADAV
AGE 17 YEARS
1.11: SRI AMIT KUMAR YADAV
GRANDSON OF LATE GANGA PRASAD YADAV
S/O LATE AJOY KUMAR YADAV
AGE 17 YEARS.
1.12: SMT DURGA YADAV
GRANDDAUGHTER OF LATE GANGA PRASAD YADAV
D/O LATE AJOY KUMAR YADAV
AGE 15 YEARS.
1.13: SMT SAROJA YADAV
DAUGHTER OF LATE GANGA PRASAD YADAV AGE 33 YEARS.
ALL ARE RESIDENTS OF DUDHPATTY
COMMONLY KNOWN AS JANIGANJ MAHABIR MARGE ROAD
PO PS SILCHAR
DISTRICT CACHAR
ASSAM
VERSUS
ON DEATH OF NIRMOLA SUNDARI PAUL HER LEGAL HEIRS
CACHAR, ASSAM
1.1:LAKHAN PAUL
S/O- LT SURESH CHANDRA PAUL OF JANIGANJ BAZAR
P.O. AND P.S. SILCHAR
DIST- CACHAR
ASSAM
PIN-
1.2:SANKAR PAUL
S/O- LT SURESH CHANDRA PAUL OF JANIGANJ BAZAR
P.O. AND P.S. SILCHAR
DIST- CACHAR
ASSAM
PIN-
1.3:NITAI PAUL
S/O- LT SURESH CHANDRA PAUL OF JANIGANJ BAZAR
P.O. AND P.S. SILCHAR
Page No.# 3/5
DIST- CACHAR
ASSAM
PIN-
1.4:GOURA PAUL
S/O- LT SURESH CHANDRA PAUL OF JANIGANJ BAZAR
P.O. AND P.S. SILCHAR
DIST- CACHAR
ASSAM
PIN-
1.4.1:KALPANA PAUL
RESIDENT OF HOUSE NO 11 PRADIPTA LANE
JANIGANJ BAZAR PS SILCHAR
DISTRICT CACHAR ASSAM
1.4.2:GOURAV PAUL
RESIDENT OF HOUSE NO 11 PRADIPTA LANE
JANIGANJ BAZAR PS SILCHAR
DISTRICT CACHAR ASSAM
1.4.3:KABITA PAUL
WIFE OF SRI GOUTAM PAUL
D/O LATE GOURA PAUL RESIDENT OF RAILWAY QUARTER
78/C
REST CAMP PANDU
GUWAHATI
KAMRUP (M)
ASSA
Advocate for the Petitioner : MR. D CHAKRABARTY
Advocate for the Respondent : MR. S D PURKAYASTHA (R-1.4.1 & 1.1.2)
BEFORE
HONOURABLE MR. JUSTICE HITESH KUMAR SARMA
ORDER
Date : 09-05-2022
Heard Mr. D Chakrabarty, learned counsel for the petitioner. Also heard
Mr. SD Purkayastha, learned counsel for the respondents.
This is an application filed under Article 227 of the Constitution of India
Page No.# 4/5
read with Section 151 of the CPC seeking setting aside the order, dated
25.06.2019, passed by the learned Munsiff No. 1, Cachar, Silchar in Petition No.
1012/2013 arising out Title Execution Case No. 37/2017 in Title Suit No.
352/1981 rejecting the prayer for stay of the execution proceedings till disposal
of Title Suit No. 30/2015, pending before the learned Civil Judge No. 2, Cachar,
Silchar.
The execution proceeding in the Title Execution Case No. 37/2017 is pending
in the court of the learned Munsiff No. 1, Cachar, Silchar and a suit with regard to
the same property has been pending, being T.S. No. 30/2015, in the court of the
learned Civil Judge No. 2, Cachar, Silchar.
Mr. Chakrabarty, learned counsel for the petitioner has submitted that in view
of the pendency of the Title Suit No. 30/2015 before the court of the learned Civil
Judge No. 2, Cachar, Silchar in respect of the same suit land, the Title Execution
Case No. 37/2017, referred to above, be stayed. He has specifically referred to the
provisions of Order XXI Rule 29 of the CPC.
Mr. Purkayastha, learned counsel for the respondents has submitted that this
provision of law as referred to by the learned counsel for the petitioner is not
applicable in the instant case as the Title Execution proceeding and the Title Suit
have to be in the same court for a order to be passed under Order XXI Rule 29 of
the CPC.
During the course of hearing, the respective learned counsel for the parties
have agreed that the law governing the issue involved in this case has been settled
by this Court in the case of Bibha Charan Barua -vs- Nani Gopal Deva
Goswami & Ors., reported in 2008 (3) GLT 486, referring to the judgment of
the Hon'ble Supreme Court of India in the case of Shaukat Hussain @ Ali
Akram & Ors. -vs- Smt. Bhuneshwari Devi (dead) by L.RS. & Ors ., reported
in (1972) 2 SCC 731.
Page No.# 5/5
Since both the parties have agreed that the law governing the situation in the
instant case has been covered by the above decisions, I have meticulously
examined the same.
On visiting the provisions of Order XXI Rule 29 of the CPC coupled with the
decisions, referred to by the learned counsel for the parties, this Court is of the
view that, on facts, the provisions of Order XXI Rule 29 of the CPC is not applicable
in the instant case in so far as the Title Execution proceeding, referred to above, is
pending in the court of the learned Munsiff whereas the suit allegedly in respect of
the same suit property is pending before another court, i.e., learned Civil Judge No.
2, Cachar, Silchar. Had both the proceedings been before the same court, the
provisions of Order XXI Rule 29 of the CPC would have been applicable in view of
the provisions as well as the decision cited by both the parties, as indicated above.
That being so, this Court is of the view that there is no such illegality and
irregularity in the impugned order passed by the learned court below requiring
interference by this Court in exercise of its jurisdiction under Article 227 of the
Constitution of India read with Section 151 of the CPC. Accordingly, this petition is
dismissed. The stay order granted earlier stands vacated.
However, in view of issues involved in the matter, as noticed by this Court
while taking up this proceeding, this Court desires the learned court below, i.e., the
learned Civil Judge No. 2, Cachar, Silchar to dispose of the Title Suit No. 30/2015
as expeditiously as possible.
JUDGE
Comparing Assistant
