Gauhati High Court

Gopal Ghosh vs Surajit Gope on 8 May, 2024

Author: Devashis Baruah

Bench: Devashis Baruah

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GAHC010042412023




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

                                    Case No. : RSA/42/2023

            GOPAL GHOSH
            S/O LATE BHUPATI @ BIBHUTI GHOSH,
            RESIDENT OF WARD NO. 6, BIHUPURIA TOWN, PO BIHUPURIA, PS
            BIHUPURIA, DIST LAKHIMPUR, ASSAM



            VERSUS

            SURAJIT GOPE
            S/O LATE NIKHIL GOPE,
            RESIDENT OF WARD NO. 4, BIHUPURIA TOWN, PO BIHUPURIA, PS
            BIHUPURIA, DIST LAKHIMPUR, ASSAM



Advocate for the Petitioner   : MR. P BOIRAGI

Advocate for the Respondent : MR T GOGOI




             Linked Case : I.A.(Civil)/737/2023

            GOPAL GHOSH
            S/O LATE BHUPATI @ BIBHUTI GHOSH

            RESIDENT OF WARD NO. 6
            BIHUPURIA TOWN
            PO BIHUPURIA
            PS BIHUPURIA
            DIST LAKHIMPUR
                                                                    Page No.# 2/3

           ASSAM


           VERSUS

          SURAJIT GOPE
          S/O LATE NIKHIL GOPE

          RESIDENT OF WARD NO. 6
          BIHUPURIA TOWN
          PO BIHUPURIA
          PS BIHUPURIA
          DIST LAKHIMPUR
          ASSAM


           ------------




Advocate for the appellant(s): Mr. AR Shome


Advocate for the respondent(s): Ms. P Bhattacharyya


                                  BEFORE
                  HON'BLE MR. JUSTICE DEVASHIS BARUAH
                                    ORDER

08.05.2024 This is an appeal under Section 100 against the judgment and decree dated 09.12.2022 passed in Misc. Appeal No.02/2021 by the Court of the learned Civil Judge Lakhimpur, North Lakhimpur whereby the appeal filed against the rejection of an application under Order XXI Rules 97/99 and 101 of the Code of Civil Procedure, 1908 (for short, the Code) was affirmed.

2. This Court admits the instant appeal by formulating the following substantial question of law:

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(i). Whether the learned Courts below were justified in rejecting the application under Order XXI Rules 97 and 101 filed by the appellant with an observation that the appellant ought to have filed a separate suit?

3. Issue notice, returnable on 09.05.2024.

4. Ms. P Bhattacharjya, the learned counsel duly represents the sole respondent. Extra copies of the memo of appeal be furnished to her during the course of the day.

5. List the matter tomorrow i.e. 09.05.2024 at 2.P.M.

JUDGE

Comparing Assistant