Gauhati High Court
Page No.# 1/4 vs Upen Nath And 10 Ors. B on 19 June, 2023
Page No.# 1/4
GAHC010133732023
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : CRP(IO)/178/2023
SAYAB ALI AND 4 ORS
S/O LT HASEN ALI R/O VILL. KATONIGAON P.O. THELAMARA MOUZA
NAHARBARI P.S. THELAMARA DIST. SONITPUR ASSAM
2: ABDUL RASHID
S/O LT HASEN ALI R/O VILL. KATONIGAON P.O. THELAMARA MOUZA
NAHARBARI P.S. THELAMARA DIST. SONITPUR ASSAM
3: AJIJUL HAQUE
S/O LT HASEN ALI R/O VILL. KATONIGAON P.O. THELAMARA MOUZA
NAHARBARI P.S. THELAMARA DIST. SONITPUR ASSAM
4: SAHABUDDIN
S/O LT ATABUDDIN R/O VILL. KATONIGAON P.O. THELAMARA MOUZA
NAHARBARI P.S. THELAMARA DIST. SONITPUR ASSAM
5: SAMARUDDIN @ MD. SAMSUDDIN
S/O LT. FAZAR ALI R/O VILL. KATONIGAON P.O. THELAMARA MOUZA
NAHARBARI P.S. THELAMARA DIST. SONITPUR ASSA
VERSUS
UPEN NATH AND 10 ORS. B
S/O LT. SATRAM NATH R/O VILL. KATONIGAON MOUZA NAHARBARI PS
THELAMARA DIST. SONITPUR ASSAM
2:JOGEN NATH
S/O LT. SATRAM NATHI R/O VILL. KATONIGAON P.O. THELAMARA
MOUZA NAHARBARI P.S. THELAMARA DIST. SONITPUR ASSAM
3:LILABATI DEVI
W/O LT. DEBADHAR NATH R/O VILL. KATONIGAON P.O. THELAMARA
MOUZA NAHARBARI P.S. THELAMARA DIST. SONITPUR ASSAM
4:LAKHI NATH
Page No.# 2/4
S/O LT DEBADHAR NATH R/O VILL. KATONIGAON P.O. THELAMARA
MOUZA NAHARBARI P.S. THELAMARA DIST. SONITPUR ASSAM
5:RUDRA NATH
S/O LT DEBADHAR NATH R/O VILL. KATONIGAON P.O. THELAMARA
MOUZA NAHARBARI P.S. THELAMARA DIST. SONITPUR ASSAM
6:GAJEN NATH
S/O LT DEBADHAR NATH R/O VILL. KATONIGAON P.O. THELAMARA
MOUZA NAHARBARI P.S. THELAMARA DIST. SONITPUR ASSAM
7:BIROHI DEVI
D/O LT. SATRAM NATH R/O VILL. KATONIGAON P.O. THELAMARA MOUZA
NAHARBARI P.S. THELAMARA DIST. SONITPUR ASSAM
8:AMBIKA DEVI
D/O LT. SATRAM NATH R/O VILL. KATONIGAON P.O. THELAMARA MOUZA
NAHARBARI P.S. THELAMARA DIST. SONITPUR ASSAM
9:BALIKA DEVI
W/O TULSHI HAZARIKA R/O VILL. KATONIGAON P.O. THELAMARA
MOUZA NAHARBARI P.S. THELAMARA DIST. SONITPUR ASSAM
10:SENCHI DEVI
W/O BABULAL DAS R/O BAMAKHATA KENDUGURI PATHSALA P.O.
BAMAKHATA DIST BARPETA ASSAM
11:LILY DEVI
W/O LT. TERAI NATH R/O BIHAGURI MEKANA CHUBURI MOUZA AND P.O.
BIHAGURI DIST. BARPETA ASSA
Advocate for the Petitioner : MR M R ADHIKARI
Advocate for the Respondent :
BEFORE
HON'BLE MR. JUSTICE DEVASHIS BARUAH
ORDER
19.06.2023
Heard Mr. M. R. Adhikari, the learned counsel for the petitioners.
2. The instant revision petition has been filed challenging the order
dated 02.06.2023 passed in Petition No.506/2022 by the Executing Court
Page No.# 3/4
in Title Execution Case No.40/2022. It appears from the records that vide
the judgment and decree dated 18.02.2022 passed in Title Suit
No.41/2017, the said suit was decreed thereby declaring the right, title
and interest of the plaintiffs; granted a decree for recovery of possession
of the suit land by evicting the defendants as well as a decree for
permanent injunction was also issued.
3. It reveals from the records that an application was filed by the
defendants who are the petitioners herein under Order IX Rule 13 of the
Code of Civil Procedure, 1908 read with Section 5 of the Limitation Act,
1963 for setting aside the judgment and decree dated 18.02.2022 on the
grounds and reasons stated therein. It further reveals from the records
that the plaintiffs who are respondents herein had filed the Execution
Proceedings registered and numbered as Title Execution Case No.40/2022.
During the pendency of the application for setting aside the judgment and
decree dated 18.02.2022-Misc.(J) Case No.115/2023, the petitioners filed
an application bearing No.506/2023 for stay of the Execution Proceedings
till the disposal of the Misc.(J) Case No.115/2023. The learned Executing
Court rejected the said application vide the order dated 02.06.2023 on the
ground that the stay of the Execution Proceedings can only be granted by
the Court before whom the Misc.(J) Case No.115/2023 was filed or by the
Appellate Court or the Revisional Court. Under such circumstances, the
petitioners, therefore, approached the learned Trial Court by filing a
petition bearing No.1264/2023 for stay of the operation of the impugned
judgment and decree dated 18.02.2022 passed in Title Suit No.41/2017 as
well as Title Execution Case No.40/2022 till the disposal of Misc.(J) Case
No.115/2023. In the said proceedings, the learned Trial Court vide the
Page No.# 4/4
order dated 07.06.2023 had issued only notices thereby fixing 04.07.2023
for SR & Objection. The instant petition, as already noted herein above,
has been filed challenging the order dated 02.06.2023 passed in Title
Execution Case No.40/2022.
4. This Court upon perusal of the order dated 02.06.2023 is of the
opinion that no case is made out for interference under Article 227 of the
Constitution in as much as the learned Executing Court was justified in
passing the order dated 02.06.2023 and had exercised the jurisdiction in
accordance with law.
5. The learned counsel for the petitioners, however, submits that vide
the order dated 17.06.2023, the learned Executing Court had directed the
decree holders, i.e. the respondents herein to deposit the costs for police
aid and has also issued the writ for delivery of possession.
6. This Court is of the opinion that the petitioners would be well
advised to file appropriate application before the learned Trial Court before
whom Misc.(J) Case No.115/2023 is pending seeking urgent relief taking
into account the order dated 17.06.2023.
7. It is observed that upon such application so filed, the learned Trial
Court shall pass appropriate order as it deems proper in accordance with
law.
8. With the above observation and direction, the instant petition stands
disposed of.
JUDGE
Comparing Assistant
