Gauhati High Court
Kankan Kalita vs Biswanath Jajodia on 1 December, 2023
Author: Kalyan Rai Surana
Bench: Kalyan Rai Surana
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GAHC010260392023
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : CRP(IO)/376/2023
KANKAN KALITA
S/O SRI DHANCHIT KALITA, R/O RANGIA TOWN, WARD NO. 4, RANGIA
BAZAR, P.O. AND P.S.-RANGIA, PIN-781354, MOUZA-PANDURI, CIRCLE-
RANGIA REVENUE CIRCLE, DIST- KAMRUP, ASSAM
VERSUS
BISWANATH JAJODIA
S/O BAJRANGALAL JAJODIA, R/O RANGIA TOWN, WARD NO. 4, RANGIA
BAZAR, P.O. AND P.S.-RANGIA, PIN-781354, MOUZA - PANDURI, CIRCLE -
RANGIA REVENUE CIRCLE, DIST- KAMRUP, ASSAM
Advocate for the Petitioner : MR. A PAUL
Advocate for the Respondent :
BEFORE
HONOURABLE MR. JUSTICE KALYAN RAI SURANA
ORDER
Date : 01.12.2023
Heard Mr. A. Paul, the learned counsel for the petitioner.
2. By this application under Article 227 of the Constitution of India
read with section 151 CPC, the petitioner has invoked inherent jurisdiction of
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this Court to assail the order dated 08.08.2023, passed in Misc.(J) Case No.
07/2023 by the learned Munsif, Kamrup, Rangia in T.Ex. Case No. 5/2019,
thereby refusing to stay the execution proceeding till disposal of Misc. (J) Case
No. 8/2021.
3. The case of the petitioner is that his father is the defendant in
T.S. No. 14/2014, which was instituted by the respondent. The suit was decreed
by judgment and decree dated 01.03.2019, passed by the learned Civil Judge
(Junior Division), Kamrup, Rangia [formerly Court of Munsiff, Kamrup, Rangia].
The father of the petitioner had filed an appeal, which was registered as Title
Appeal No. 1/2021.
4. Although the decree was passed on 01.03.2019, no statement
has been made in this application, why appeal filed by the father of the
petitioner was registered in the year 2021. Be that as it may, the petitioner
claims that he had resisted the decree by filing an application before the learned
Executing Court under Order XXI, Rules 97, 99, 101 and 103 of the CPC. The
said application was registered as Misc. (J) Case No. 7/2023. However, the
learned Executing Court, by order dated 08.08.2023, impugned in this
application, had dismissed the said misc. case. The legality of the said order is
put to challenge in this application filed under Article 227 of the Constitution of
India read with Section 151 CPC.
5. It may be mentioned that the father of the petitioner has also
approached this Court by filing CRP (I/O) No. 375/2023 on refusal of the
learned Executing Court to stay the execution proceeding. The said application
is filed by Mr. Ashim Paul, Advocate. In this application, which is also filed by the
same learned advocate, namely, Mr. Ashim Paul, the petitioner has made a
statement that he was in possession of the suit land on the strength of his own
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right. Therefore, though the interest of the father of the petitioner, who had
filed CRP (I/O) No. 375/2023 appears to be in conflict with that of the petitioner
in this case, but as both the applications are filed by the same learned advocate,
the Court has no hesitation to hold that CRP (I/O) No. 375/2023 as well this
CRP (I/O) No. 376/2023 are collusive because the petitioners in both cases are
related as father and son respectively. Both the parties are resisting the
execution of the decree passed in T.S. No. 14/2014. When the proceeding of
CRP (I/O) 375/2023 was being heard, the Court was not informed that CRP
(I/O) No. 376/2023 was filed by the son of petitioner in CRP (I/O) No.
375/2023. Therefore, in the order passed in CRP (I/O) No. 375/2023, it was
observed by this Court that reference to statement by a third party was
irrelevant. However, the relationship between the petitioners in CRP (I/O) No.
375/2023 and CRP (I/O) No. 376/2023 as father and son has come to light only
when this application was heard.
6. The learned counsel for the petitioner has not made any attempt
to show any provision of law or any case citation to demonstrate that order of
rejection of petition under Order XXI, Rules 97, 99, 101 and 103 of the CPC
could be assailed under Article 227 of the Constitution of India.
7. It may also be mentioned that the learned counsel for the
petitioner has not made any attempt to demonstrate any jurisdictional error in
the impugned order. It also could not be shown that the High Court in exercise
of power under Article 227 of the Constitution of India or under Section 151 CPC
can stay execution of decree in the interest of justice. On the contrary, in
connection with the scope of Article 227 of the Constitution of India, we may
refer to the case of Ouseph Mathai v. M. Abdul Khadir, (2002) 1 SCC 319: AIR
2002 SC 110, where the Supreme Court of India had held that a mere wrong
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decision is not a ground to exercise jurisdiction under Art.227 and it was further
held that High Court may intervene under Art.227 only where it is established
that lower Court or Tribunal has been guilty of grave dereliction of duty or
flagrant abuse of power, which has resulted in grave injustice to any party. We
may also refer to the case of Estralla Rubber v. Dass Estate (P) Ltd., (2001) 8
SCC 97, where the Supreme Court of India had held to the effect that finding
can be set aside under Article 227 of the Constitution of India if findings are
based on no evidence at all or are so perverse that no reasonable person could
come to such a conclusion. Thus, Article 227 of the Constitution of India can be
invoked only when the learned Court below had committed jurisdictional error.
8. Thus, in a case like this, where the order impugned suffers from
no legal infirmity, or jurisdictional error, and when it could not be shown that the
impugned order was passed in grave dereliction of duty and when it cannot be
shown that the impugned order was passed in flagrant abuse of power, the
Court would not have power under Article 227 of the Constitution of India and
under Section 151 CPC to either interfere with the order dated 08.08.2023,
passed in Misc.(J) Case No. 07/2023 by the learned Munsif, Kamrup, Rangia in
T.Ex. Case No. 5/2019 or to stay the execution proceeding.
9. Therefore, this petition appears to be ex facie misconceived and
nothing but an abuse of the process of Court.
10. Thus, in light of the discussions above, the Court is inclined to
hold that the impugned order dated 08.08.2023, passed by the learned Civil
Judge (Junior Division), Kamrup, Rangia in Misc.(J) Case No. 7/2023, thereby
rejecting the said Misc. (J) Case No. 7/2023 does not suffer from any
jurisdictional error and therefore, does not warrant any interference whatsoever
either under Article 227 of the Constitution of India or under Section 151 CPC or
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under any other law in force.
11. Therefore, by holding that this petition is ex facie misconceived
and abuse of the process of Court, this application stands dismissed in limine, at
the motion stage, without issuance of notice on the respondent.
12. The Registry shall transmit a copy of this order before the Court
of Civil Judge (Junior Division), Kamrup, Rangia to make it a part of the record
of T.Ex. Case No. 5/2019.
JUDGE
Comparing Assistant
