Bhagaban Das vs Debajyoti Saikia And Anr
2023 Latest Caselaw 4052 Gua

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GAHC010221622023




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

                                Case No. : CRP(IO)/324/2023

            BHAGABAN DAS
            S/O LATE KUMUD CH. DAS, R/O HOUSE NO. 37, SANTIPUR MAIN ROAD,
            GUWAHATI, DIST- KAMRUP (M), ASSAM, PIN-781009. REPRESENTED BY
            HIS WIFE SMTI MAYURAKSHI DAS, AGED ABOUT 53 YEARS



            VERSUS

            DEBAJYOTI SAIKIA AND ANR.
            S/O LATE DEBENDRA NATH SAIKIA, R/O LACHAUMIERE HILLS, P.O. GPO,
            SHILLONG-793001, P.S.-SHILLONG (SADAR), DIST- KHASI HILLS (EAST),
            MEGHALAYA

            2:SMTI JOY LAXMI BORA SAIKIA
             D/O LATE DEBENDRA NATH SAIKIA
             RESIDENT UNDER C/O COLLEGE OF ARTS AND SCIENCES
             DEPARTMENT OF SOCIAL WORK AND CRIMINAL JUSTICE
             UNA BOX-5029
             UNIVERSITY OF NORTH ALABAMA
             FLORENCE
            ALABAMA-35632-0001
             U.S.A

Advocate for the Petitioner   : MR. K N CHOUDHURY

Advocate for the Respondent :
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                                 BEFORE
                 HONOURABLE MR. JUSTICE KALYAN RAI SURANA

                                      ORDER

Date : 29.09.2023 Heard Mr. K.N. Choudhury, learned senior counsel, assisted by Mr. A. Dhar, 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 11.05.2023 passed by the learned Civil Judge (Senior Division) No.3, Kamrup (M), Guwahati in T.Ex. No.32/2023. By the said order, the writ of possession was issued against the petitioner who was the judgment debtors without issuance of notice.

3. It is submitted that TS No. 136/2005 was filed by the respondent against the petitioner, which was decreed and against the said decree, an appeal was preferred before this Court being RFA 55/2014. It is submitted that as per the status of pending cases, which is available in the website of this Court, the said RFA 55/2014 is shown as pending. However, the petitioners have come to know that the proceeding of RFA 55/2014 was in fact transfer for disposal before the learned Addl. District Judge No.5, Kamrup (M), Guwahati where it was re-registered as TA 39/2022. It is further submitted by the learned senior counsel for the petitioner that they had no notice served of the said transfer and the said TA 39/2022 was dismissed for non-appearance by any of the parties on 11.01.2023.

4. Accordingly, it is submitted by relying on the decision of the Kolkata High Court in the case of Shyam Mandal Vs. Santinath Banerjee and Ors., AIR 1970 CL 728: 1960 SCC Online Cal 169 that the order of dismissal for default is not a decree. Therefore, it is submitted that the appellate decree would not Page No.# 3/4

merged with the decree of the learned trial Court. Consequently, it is submitted that the application for execution which was filed for the first time in connection with the decree passed in TS 136/2005 in the year 2023 was beyond two years from the date of the decree and therefore, was in conduct on part of the Court to issue a notice to the judgment debtor.

5. It is submitted that the learned trial Court relied on the decision of this Court in the case of Rubyius Thubru @Ruby Thubru Vs. Kongka Lamare and Ors. 2011 (2) GLT 605. In the said connection, it is submitted by referring to paragraph 2 of the said judgment in the said case, the appeal was dismissed by the District Council Court on 10.09.2007. Accordingly, it is submitted that it was not a case where the appeal was dismissed for non-prosecution.

6. It is further submitted by the learned senior counsel for the petitioner that the petitioners having come to know that that appeal was dismissed for non-prosecution and he proposes to take steps for the admission of the appeal. It is submitted that as per his instruction, the Presiding Officer of the Court of learned Addl. District Judge No.5, Kamrup (M), Guwahati is presently not available and under those circumstances, this application has been filed.

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

8. The petitioner shall take steps within 03.10.2023 for service of notice on the respondents by registered post with A/D.

9. Till the next returnable date, further proceeding in T. Ex. No.32/2023 pending before the court of learned Civil Judge (Senior Division) No.3, Kamrup (M), Guwahati shall remain suspended.

10. The petitioner shall produce a certified copy of this order before the learned trial Court to bring the order to the notice of the said court.

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11. List after 4(four) weeks.

JUDGE

Comparing Assistant