Gauhati High Court
Page No.# 1/5 vs Bhanu Nessa on 27 September, 2022
Page No.# 1/5
GAHC010090652022
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : CRP/22/2022
MUST. SAKITAN NESSA AND 4 ORS.
W/O- LATE HANIF ALI
VILL.- SOILMARI
P.O. CHIKNI
MOUZA- TITAPANI
P.S. KALGACHIA
DIST. BARPETA
ASSAM
2: MUST. SAHERA KHATUN
D/O- LATE HANIF ALI
W/O- ABDUR REJJAK
VILL.- UJIRER CHAR
P.O. AND P.S. BAGHBAR
DIST. BARPETA
ASSAM
3: MUST. HASINA KHATUN
D/O- LATE HANIF ALI
W/O- SAYED ALI
VILL.- SARAGAON
P.O. JAIPUR
P.S. AMGURI
DIST. CHIRANG
ASSAM
4: SHAHIDUL ISLAM
S/O- LATE HANIF ALI
VILL.- SOILMARI
P.O. CHIKNI
MOUZA- TITAPANI
P.S. KALGACHIA
DIST. BARPETA
ASSAM
Page No.# 2/5
5: MAFIDUL ISLAM
S/O- LATE HANIF ALI
VILL.- SOILMARI
P.O. CHIKNI
MOUZA- TITAPANI
P.S. KALGACHIA
DIST. BARPETA
ASSAM
VERSUS
BHANU NESSA
W/O- SORHAB ALI
D/O- LATE TAMEJ ALI
VILL.- SOILMARI
P.O. CHIKNI
MOUZA- TITAPANI
P.S. KALGACHIA
DIST- BARPETA
ASSAM
PIN- 781321.
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Advocate for : MR M H AHMED
Advocate for : MR. J AHMED appearing for BHANU NESSA
BEFORE
HONOURABLE MR. JUSTICE DEVASHIS BARUAH
ORDER
Date : 27.09.2022
Heard Mr. M. H. Ahmed, the learned counsel appearing on behalf of the
Petitioners and Mr. J. Ahmed, the learned counsel appearing on behalf of the
Respondent.
This is an application under Article 227 of the Constitution of India
challenging the order dated 03.03.2022 passed in Misc. (J) Case No.30/2022
arising out of Misc. Appeal No.6/2022.
The case of the Petitioners in brief is that the Petitioners initially filed an
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application under Order XXI Rule 97, 99 & 101 of the Code of Civil Procedure in
Title Execution Case No.41/2017. The said case was registered and numbered
as Misc.(J) Case No.222/2021. The learned Munsiff No.1, Barpeta vide an order
dated 15.02.2022 dismissed the petition holding inter alia that the judgment
and decree passed in Title Suit No.85/2003 was also binding upon the
Petitioners.
Being aggrieved and dissatisfied, the Petitioners as Appellants had
prepared an appeal before the Court of the Civil Judge, Barpeta at Barpeta
which was registered and numbered as Misc. Appeal No.6/2022. It may be
relevant herein to mention that by virtue of Order XXI Rule 103, the order dated
15.02.2022 passed in Misc.(J) Case No.222/2021 would be deemed to be a
decree. Along with the said appeal so filed, the Petitioners also filed an
application for stay of the Title Execution Case No.41/2017 on the ground that if
the said stay is not granted, the Petitioners who are in possession of the suit
property would be dispossessed. The Court of the Civil Judge, Barpeta vide the
order dated 03.03.2022 rejected the said petition seeking stay on the ground
that the judgment passed in Title Suit No.85/2003 has already reached finality
and there is no substantial loss likely to be caused to the Petitioners and as no
undertaking required by law has been filed along with the petition, the said
application was rejected. It is against the said order that the Petitioners have
approached this Court under Article 227 of the Constitution of India.
It is a well settled principle of law that pursuant to the amendment
brought in the year 1976 to the Code of Civil Procedure, 1908, the Executing
Court before whom an application is filed under Order XXI Rule 97, 99 and 101
is to determine all questions including the questions relating right, title and
interest in the property and there is a bar of a separate suit by Rule 101 of
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Order XXI. Therefore, it would be seen that in terms with Order XXI Rule 103,
the orders passed under Rule 98 and 100 are to be treated as decrees.
Considering the above, the appeal so filed by the Petitioners before the
First Appellate Court i.e. the Court of the Civil Judge, Barpeta is a first appeal
and along with the said first appeal, an application was filed for stay of the said
execution proceedings taking into account that if the execution proceedings are
permitted to go ahead pending disposal of the appeal, nothing would survive.
However, it would be seen that the First Appellate Court basing its conclusions
on the fact that the judgment passed in Title Suit No.85/2003 have already
attained finality as it has been confirmed by this Court and did not take into
consideration the necessary requirements while considering an application for
stay. The First Appellate Court did not take into consideration that vide the
impugned order dated 15.02.2022 the rights of the parties have already been
decided as regards their right, title and interest over the suit property and the
first appeal being a statutory right and the said appeal having been admitted,
the Petitioners were entitled for protection of their possession till the disposal of
the said appeal.
Considering the above, this Court deems it proper to direct that the parties
shall maintain status quo as regards the possession in respect to the Schedule
"X" and "Y" land as described in Misc. (J) Case No.222/2021 till the disposal of
the appeal.
Taking into account that this Court has passed the above interim
directions, this Court would request the Court of the Civil Judge, Barpeta to
expeditiously dispose of the said appeal and preferably within 3 months from
the date of appearance of the parties.
In view of the above order, the interim order dated 14.03.2022 stands
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vacated and the parties are directed to appear before the First Appellate Court
i.e. the Court of the Civil Judge, Barpeta on 02.11.2022.
It is further observed that this Court is not staying the proceedings in Title
Execution Case No.41/2017 and the decree holders would be at liberty to file
appropriate applications for ascertaining the possession and measurement of
the suit land in Title Suit No.85/2003 before the Executing Court. However, it is
made clear that the status quo as regards the possession of Schedule "X" and
"Y" land as described in Misc. (J) Case No.222/2021 be maintained till the
disposal of the appeal before the First Appellate Court.
With above observations and directions, the instant petition stands
disposed of.
JUDGE
Comparing Assistant
