Gauhati High Court
Page No.# 1/4 vs Daibaki Kumari Devi on 9 August, 2024
Page No.# 1/4
GAHC010157872024
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : CRP(IO)/287/2024
BIMAL KR. SARMA AND 2 ORS.
S/O- LATE UMA KANTA SARMA, PERMANENT RESIDENT OF JAGIROAD
TOWN, MOUZA- GOVA, NEAR SOBHASINI MEDICAL STORE, MORIGAON
ROAD, P.O. AND P.S. JAGIROAD, DIST. MORIGAON, ASSAM, PIN- 782410.
2: SMT. RANJU SARMA
W/O- SRI BIMAL KR. SARMA
PERMANENT RESIDENT OF JAGIROAD TOWN
MOUZA- GOVA
NEAR SOBHASINI MEDICAL STORE
MORIGAON ROAD
P.O. AND P.S. JAGIROAD
DIST. MORIGAON
ASSAM
PIN- 782410.
3: KAUSTABH MONI SARMA
S/O- SRI BIMAL KR. SARMA
PERMANENT RESIDENT OF JAGIROAD TOWN
MOUZA- GOVA
NEAR SOBHASINI MEDICAL STORE
MORIGAON ROAD
P.O. AND P.S. JAGIROAD
DIST. MORIGAON
ASSAM
PIN- 782410
VERSUS
DAIBAKI KUMARI DEVI
W/O- LATE UMA KANTA SARMA, RESIDENT OF JAGIROAD TOWN,
MOUZA- GOVA, NEAR SOBHASINI MEDICAL STORE, MORIGAON ROAD,
P.O. AND P.S. JAGIROAD, DIST. MORIGAON, ASSAM, PIN- 782410.
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Advocate for the Petitioner : MR. P D NAIR, MR G ALAM,MR. H ROHMAN,MR S R A NASER
Advocate for the Respondent : MR. R BARUAH, FOR CAVEATOR,MS. M NATH,MR. A IKBAL
BEFORE
HONOURABLE MR. JUSTICE ROBIN PHUKAN
ORDER
09.08.2024
Heard Mr. D. Mazumdar, learned Senior Counsel, assisted by Mr. G. Alam,
learned counsel for the petitioner and Mr. Samnur Ali, learned counsel for the
respondent.
2. Correctness or otherwise of the order, dated 02.07.2024, passed by the learned
Civil Judge, Jr. Divn. No.1, Morigaon in Title Execution Case No. 04/2013, is challenged
in this petition, under Article 227 of the Constitution of India, by three petitioners,
namely, Shri Bimal Kr. Sarma, Smti. Ranju Sarma and Shri Kaustabh Moni Sarma.
3. It is to be noted here that vide impugned order, dated 02.07.2024, the learned
executing court had rejected the petition No. 872/2022, filed under Order 21, Rule 26
read with Rule 29 and Section 151 of the Civil Procedure Code to drop the proceeding
of the Title Execution Case No. 04/2013, and also the petition No. 539/2024 filed by
the petitioners on 27.06.2024, being the decree, so passed in Title Suit No.39/2006, is
in-executable.
4. Mr. Mazumdar, the learned Senior Counsel for the petitioner, taking this court
through the Schedule 'Kha' of Title Suit No.39/2006 and also the Schedule 'Kha' of
the Judgment so passed in the said Title Suit submits that both the Schedule are
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same, but, the Schedule 'Kha' in the decree, so prepared, pursuant to the judgment,
is different. And as such, according to him, the decree is a nullity and consequently it
is in executable. Mr. Mazumdar also submits that though the petitioners have pointed
this out by filing the aforementioned petitions, yet, the learned executing court had
dismissed the same vide impugned order. Referring to a decision of Hon'ble Supreme
Court in Howrah Daw Mangala Hat B.B. Samity vs. Pronob Kumar Daw,
reported in (2001) 6 SCC 534, Mr. Mazumdar submits that executing court can
allow objection under section 47 of the Code to the executability of the decree, if it
found that the same is void ab initio and a nullity, apart from the ground that the
decree is not capable of execution under such a provision of law or the law was
promulgated making a decree in executable after its passing. Therefore, Mr. Mazumdar
contended to allow the petition and pending disposal of this petition, Mr. Mazumdar
contended stay the Title Execution Case No. 04 of 2013.
5. Per contra, Mr. Samnur Ali the learned counsel for the respondent submits that
he may be granted two weeks time to file objection as the petition is voluminous. Mr.
Ali also submits that this is the last stage of the case and no stay can be granted at
this stage and he assured that for next two weeks the decree will not be executed. It
is also pointed out that petitioner herein is the own son of the sole respondent and
the petitioner, being the son had caused mother to suffer a lot.
6. Having heard the submission of learned Advocates of both sides, I have
carefully gone through the petition and the documents placed on record and also
perused the impugned order, dated 02.07.2024, in Title Execution Case No. 04/2013.
Also, I have gone through the petition No. 872/2022, filed under Order 21, Rule 26
read with Rule 29 and Section 151 of the Civil Procedure Code to drop the proceeding
of the Title Execution Case No. 04/2013, and also the petition No. 539/2024, filed by
the petitioners. Also I have gone through the case law referred by Mr. Mazumdar.
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7. It appears that the Schedule 'Kha' of the plaint of Title Suit No.39/2006 and the
Schedule 'Kha' so mentioned in the Judgment, so passed by the learned trial court in
the said Title Suit, is same. But, the Schedule 'Kha' in the decree, so prepared,
pursuant to the judgment is different. This discrepancy appears to be serious and
raised doubt about its executability. That being so, instead of dismissing the prayer so
made in the said petitions, the learned executing court ought to have address the
grievance of the petitioner before proceeding further in view of provision of section 47
of the CPC, as held in the case of Howrah Daw Mangala Hat B.B. Samity
(supra).That being so, there appears to be substance in the submission of Mr.
Mazumdar. The matter needs further consideration.
8. At this stage, let notice be issued to the respondent returnable in two weeks.
However, no formal notice is required to be issued since Mr. Samnur Ali, learned
counsel for the respondent appeared and received notice. However, extra requisite
copy of the petition be furnished to him. Registry shall call for the scanned copy of the
record of Title Execution Case No. 04/2013, from the learned trial court.
9. In view of the categorical submission of Mr. Mazumdar that the decree is in
executable being a nullity, this court is not inclined to grant stay of the Title Execution
Case No. 04/2013, as prima-facie there is less prospect of the same being executed.
Besides, Mr. Ali, the learned counsel for the respondent has assured this court that for
next two weeks there shall be no execution of the decree. However, the interim prayer
will be considered on next date.
List after two weeks.
JUDGE
Comparing Assistant
