Gauhati High Court
Md Ishaque vs M/S Ashok Biri Factory on 1 August, 2024
Author: Parthivjyoti Saikia
Bench: Parthivjyoti Saikia
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GAHC010248042014
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : CRP/119/2014
MD ISHAQUE
S/O- LT. ABDUL GANI, R/O VILL. and P.O.- GANIYARI VIA SILOT, DIST.-
MUZAFFARPUR, BIHAR, PRESENTLY RESIDING AT JANATA TYRE
SERVICE, G.S. ROAD, GANESHGURI, P.O.- DISPUR, GHY- 6, ASSAM.
VERSUS
M/S ASHOK BIRI FACTORY
A FIRM HAVING ITS BRANCH OFFICE SITUATED AT A.T. ROAD, GHY- 1,
KAMRUP, ASSAM.
Advocate for the Petitioner : MR.H NATH, MR.B D DEKA
Advocate for the Respondent : ,
PRESENT
THE HON'BLE MR. JUSTICE PARTHIVJYOTI SAIKIA
For the Petitioner : Mr. A. Deka,
Advocate.
For the Respondent: None appeared.
Date of Hearing : 29.07.2024.
Date of Judgment : 01.08.2024.
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JUDGMENT AND ORDER (CAV)
Heard Mr. A. Deka, learned counsel representing the petitioner. None
appeared for the respondent.
2. This is an application under Article 227 of the Constitution of India challenging
the order dated 19.12.2013 passed by the learned Munsiff No.2, Kamrup at Guwahati
in Title Execution Case No.32/03 arising out of Title Suit No.333 of 1997.
3. The petitioner is the absolute owner of a plot of land measuring 12 lechas
covered by K.P. Patta No.121 (Old), 98 (New), Dag No.283 (Old), 266 (New) of village
Sahar Guwahati, Mouza- Guwahati in the district of Kamrup, Assam.
4. There was an Assam Type house situated over the said plot of land. The
petitioner was running his business under the name and style of M/s. Indian Tyre
Service in the said house.
5. In the year 1988, some persons had encroached upon a part of the land of the
petitioner. A person called Md. Anowar Hussain had demolished a part of the said
house.
6. Therefore, the petitioner filed the suit being Title Suit No.02/1988 in the court of
Civil Judge (Jr. Divn.) No.2 at Guwahati.
7. Be that as it may. Since a portion of the Assam Type House was demolished, a
part of the land of the petitioner became vacant.
8. Adjacent to the land of the petitioner, the respondent has its godown and
residence over another plot of land. Since a portion of the land of the petitioner was
lying vacant, the respondent used that vacant portion as a road from F.A. Road to its
land.
9. Therefore, the petitioner filed another suit being T.S. No.333/1997 in the court of
Civil Judge (Jr. Divn.) No.2 at Guwahati praying for declaration that he is entitled to
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restrain the respondent from using his land as a road. The petitioner also prayed for a
permanent injunction restraining the respondent from using his land as a passage for
plying vehicles.
10. The trial court issued notice to the respondent. But the respondent did not
appear to contest the case. Therefore, on 27.09.2000, the trial court decreed the suit
of the petitioner ex parte.
11. Thereafter, the respondent filed an application before the trial court under
Order 9 Rule 13 of the Code of Civil Procedure praying for setting aside the said ex
parte decree. The trial court dismissed the said application.
12. The respondent also filed an application before the trial court for staying
execution of the decree dated 27.09.2000. This application was also dismissed.
13. This time, the respondent moved this Court vide C.R.P No.183/2007. This Court
had directed withdrawal of the earlier attachment order and directed the
respondent to deposit ₹10,000/- before the trial court. This Court sent back the matter
to the trial court for passing further orders after due consideration of the matter.
14. The petitioner being the decree holder, filed an application before the trial
court under Order 21 Rule 32 of the Code of Civil Procedure praying for keeping Shri
Suranjan Saha who represented M/s. Ashok Bidi Factory in civil imprisonment.
15. The learned trial court vide the impugned order dated 19.12.2013 has held that
the decree holder failed to prove that the decree passed in T.S. 333 of 1997 was
violated by the respondent.
16. The petitioner used to remain absent at Guwahati and he used to spend most
of his time in the State of Bihar. He comes to Guwahati only for short period of time.
The petitioner had admitted before the trial court, that during his stay at Guwahati he
had not seen the respondent using his land as a road.
17. Taking into consideration the aforesaid two facts, the trial court dismissed the
entire execution case and also returned the amount of ₹10,000/- which was
deposited by the respondent in the trial court pursuant to the order of this Court.
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18. I have considered the submissions made by Mr. Deka.
19. A decree of a civil court remains alive until it is set aside by a superior court. The
decree passed in T.S. 333 of 1997 is still alive. The petitioner filed the said suit seeking
two reliefs. The first one is- a declaration that the petitioner is entitled to restrain the
respondent from using his land as a road and for plying vehicles over his land. The
second relief wished by the petitioner is that- the respondent and his agents should
be permanently restrained from plying vehicles over his land.
20. The trial court decreed the suit entirely, meaning that both the reliefs prayed by
the petitioner were granted.
21. This Court is of the opinion that the learned trial court had erroneously oriented
itself and passed the impugned order dated 19.12.2013. This order is bad in law and
therefore, this order is set aside.
22. The primary duty of an executing court is to execute the decree. Therefore, the
executing court should always endeavour to execute the decree. The executing
court is never supposed to frustrate a lawful decree.
23. The Title Execution Case No.32 of 2003 is remanded to the court of the Munsiff
No.2, Kamrup at Guwahati for expeditious disposal in accordance with the
procedure as laid down by law.
24. The executing court is at liberty to use police force to execute the decree.
With the aforesaid direction, this revision petition stands allowed and disposed
of accordingly.
JUDGE
Comparing Assistant
