Utpalakshya Das vs Nilakanta Choudhury
2023 Latest Caselaw 4436 Gua

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GAHC010135552023




                              THE GAUHATI HIGH COURT
     (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                                 Case No. : CRP(IO)/343/2023

            UTPALAKSHYA DAS
            S/O LATE MADHUSUDHAN DAS
            RESIDENT OF SUNDARIDIA (KALAYAHATI) NEAR PWD OFFICE, MOUZA,
            PS AND DIST BARPETA, ASSAM



            VERSUS

            NILAKANTA CHOUDHURY
            S/O LATE TIKENDRA NATH CHOUDHURY
            RESIDENT OF M.C COLLEGE ROAD, BARPETA TOWN, MOUZA, PS AND
            DIST BARPETA, ASSAM 781301



Advocate for the Petitioner   : MR. B C DAS

Advocate for the Respondent :




                                   BEFORE
                   HONOURABLE MR. JUSTICE KALYAN RAI SURANA

                                          ORDER

Date : 18.10.2023 Heard Ms. I. Das, learned counsel for the petitioner.

2. By filing this application under Article 227 of the Constitution of India, the petitioner has assailed the order dated 15.12.2022, passed by the learned Page No.# 2/3

Civil Judge (Senior Division), Barpeta in Misc.(J) Case No. 06/2019, arising out of T.Ex. Case No. 07/2016.

3. The petitioner is the defendant in T.S. No. 50/2013. The said suit was filed by the respondent for specific performance of contract to enforce the agreement for sale in respect of the suit land. The suit was decreed ex parte and thereafter, the execution proceeding was initiated. The learned counsel for the petitioner has submitted that on receipt of notice of the said execution petition, the petitioner as judgment debtor had appeared on 04.04.2018 and filed petition no. 65/2018 by stating that he is to receive a sum of Rs.13,50,000/- (Rupees thirteen lakh fifty thousand only) and on receipt of such payment, he is ready and willing to transfer the land to the respondent by registered sale deed and accordingly, the learned Civil Judge (Senior Division), Barpeta had directed the respondent-decree holder to comply with the decree. Thereafter, instead of making payment of the balance amount due, the respondent-decree holder is stated to have filed petition no. 229/2018 to refund the advance amount of Rs.9,00,000/- (Rupees nine lakh only) with compensation of Rs.2,00,000/- (Rupees two lakh only). The said prayer was allowed by the learned executing Court, i.e. the Court of learned Civil Judge (Senior Division), Barpeta.

4. Issue notice returnable in 4 (four) weeks.

5. The petitioner shall take steps within 2 (two) days for service of notice on the respondent by registered post with A/D.

6. In view of the facts as narrated above, the Court is of the prima facie view that alternative prayer for restitution in a suit for specific performance within the meaning of Section 28, 29 and 30 of the Specific Relief Act, 1963, Page No.# 3/3

being a prayer for alternative relief is required to be taken up in the suit. Prima facie the Court does not find that the executing Court has a power to annul or rescind the decree of specific performance and to pass an order requiring the judgment debtor to refund the advance amount. It also prima facie appears that although the learned Civil Judge (Senior Division), Barpeta is also the Court of original jurisdiction, which has passed the decree and it is the same Court, which is taking up execution proceeding, the application for rescinding the contract ought to have been taken up in the original jurisdiction and not in execution proceeding.

7. In that view of the matter, the Court is inclined to stay the operation of the impugned order dated 15.12.2022, passed by the learned Civil Judge (Senior Division), Barpeta in Misc.(J) Case No. 6/2019 arising in the proceedings of T.Ex. Case No. 07/2016 till further orders.

8. List after 4 (four) weeks.

JUDGE

Comparing Assistant