Gauhati High Court
Sikander Ali Ahmed vs Nabibar Rahman on 18 July, 2025
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GAHC010154742025
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THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : CRP(IO)/267/2025
SIKANDER ALI AHMED
S/O- LATE ABDUL HOQUE,
R/O- VILLAGE- KUMULLIPARA, P.O- JOSHIHATIPARA, MOUZA-
GHILAZARI, P.S- HOWLY, DIST- BARPETA, ASSAM
VERSUS
NABIBAR RAHMAN
S/O- LATE HUSSAIN ALI,
R/O- VILLAGE- KHANDAKARPARA, P.O- JOSHIHATIPARA, MOUZA-
GHILAZARI, P.S- HOWLY, DIST- BARPETA, ASSAM
Advocate for the Petitioner : MD IMRAN, A ISLAM,MR S H SIKDAR
Advocate for the Respondent : ,
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BEFORE
HONOURABLE MRS. JUSTICE SUSMITA PHUKAN KHAUND
ORDER
Date : 18.07.2025
Heard Mr. S. H. Sikdar, learned counsel for the petitioner Sikander Ali
Ahmed, who has filed this application under Section 115 read with Section 151
of the Code of Civil Procedure, 1908, challenging the legality and propriety of
the order dated 04.07.2025, passed in Misc (J) Case No.10/2025 passed by the
learned Additional District Judge, Barpeta.
2. It is submitted on behalf of the petitioner that the petitioner will be
highly prejudiced as Execution Case No.05/2024 is fixed on 22.07.2025. The
matter will become infructuous if the execution is proceeded upon.
3. It is submitted that the petitioner had already paid the money to the
respondent, but the relevant documents were not returned to the petitioner. As
the loan taken by the petitioner has already been repaid and the petitioner is
contemplating to settle the dispute amicably with the respondent, the petitioner
has also prayed for a stay of execution of the judgment and decree passed in
Money Suit No.10/2019. Against the judgment and decree dated 16.02.2023 in
Money Suit No.10/2019, passed by the learned Civil Judge, Barpeta, the
petitioner has preferred an appeal, being MA No.02/2025. Thereafter, the
petitioner filed a petition under Order XLI Rule 5 of CPC praying for a stay of
execution of the impugned judgment and decree; however, by a cryptic order
dated 04.07.2025 in Misc. (J) Case No.10/2025, the case was kept in abeyance.
4. It is further submitted that the impugned order suffers from
jurisdictional infirmity as the learned appellate court failed to exercise the
jurisdiction vested under Order XLI Rule 5 CPC, which permits consideration of
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stay applications even prior to formal admission of appeal, especially where
urgency is involved, as the Execution Case No.05/2024 is fixed on 22.07.2025.
5. It is further contended that the learned trial court failed to delve into
the merits and urgency of the stay application, thereby defeating the purpose of
filing the application and rendering the appeal nugatory. It is further submitted
that a petition for condonation of delay in filing the appeal is also pending
before the appellate court.
6. I have considered the submissions of the petitioner with
circumspection.
7. Considering all aspects, the exhibition of the judgment and decree
dated 16.02.2023 of Money Suit No.10/2019 is stayed till the next date of
listing. Meanwhile, issue notice to the respondent as per usual process,
returnable within 4 (four) weeks.
9. List accordingly.
JUDGE
Comparing Assistant
