Gauhati High Court
Ghanakanta Boro vs Tarak Boro on 29 July, 2025
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GAHC010077822025
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THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : I.A.(Civil)/1207/2025
GHANAKANTA BORO
S/O LATE UPEN BORO, RESIDENT OF VILLAGE MORIPUR, SARTHEBARI,
MOUZA PAKA, DIST BARPETA, ASSAM 781307
VERSUS
TARAK BORO
S/O LATE KASHINATH BORO, RESIDENT OF VILLAGE DEKAPARA, MOUZA
PAKA, PS SARTHEBARI, DIST BARPETA, ASSAM 781314
2:PRATIMA BORO BAISHYA
S/O BIPUL BAISHYA
RESIDENT OF SATHIKUCHI
TATIKUCHI
PO GABRADAL
KAITHALKUCHI
DISTRICT NALBARI
ASSAM
3:LAKHI BORO
W/O NIREN BORO
RESIDENT OF VILLAGE MORIPUR
MOUZA PAKA
DISTRICT BARPETA
ASSAM 78130
Advocate for the Petitioner : MR. N ALAM, S A BAKHTIAR
Advocate for the Respondent : MR. N K KALITA,
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BEFORE
HONOURABLE MR. JUSTICE ROBIN PHUKAN
ORDER
Date : 29.07.2025
Heard Mr. N. Alam, learned counsel for the applicant. Also heard Mr. C.
Goswami, learned counsel for the opposite party No. 1.
2. This application, under Section 151 of the CPC, is preferred by the
applicant for recalling/modifying/vacating the stay order dated 13.11.2024,
passed by this Court in I.A.(Civil) No. 3118/2024, arising out of RSA No.
187/2024.
3. Mr. Alam, learned counsel for the applicant submits that the stay order
dated 13.11.2024, passed by this Court in I.A.(Civil) No. 3118/2024, arising out
of RSA No. 187/2024, was obtained from this Court by the opposite party No. 1,
by suppressing actual fact of execution and satisfaction of the judgment and
decree being challenged in the connected RSA No. 187/2024. By referring to a
report of the Bailiff (Annexure-E, page No. 36 of the application), Mr. Alam
submits that the Bailiff of the Court had handed over the possession of the
decretal land to the decree holder and the decree holder had received and
acknowledged the receipt of possession and signed the possession taking over
letter, and the said letter is annexed with the report and the same is enclosed at
page No. 38 of the application. Mr. Alam, by referring to the order of the learned
executing Court dated 13.11.2024, submits that the learned executing Court
had passed the order on the report of the process server in respect of delivery
of khas possession of the land to the decree holder in presence of witnesses,
and under such circumstances, Mr. Alam submits that the order of stay dated
13.11.2024, passed by this Court in I.A.(Civil) No. 3118/2024, was obtained by
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suppressing the aforementioned fact, and that the land is under the possession
of the decree holder/applicant herein, and that by virtue of the order dated
13.11.2024, the applicant is prevented from enjoying the fruits of the decree
and as such, the order dated 13.11.2024, requires modification.
4. On the other hand, Mr. Goswami, learned counsel for the opposite party
No. 1, has opposed the application. Mr. Goswami submits that the matter is
ready for hearing as TCR has already been received and the entire matter may
be heard instead of disposing of this application, and that the land is still in
possession of the opposite party No. 1 and the decree was not completely
executed.
5. Having heard the submissions of learned counsel for both the parties, I
have carefully gone through the application and the documents placed on
record, and also perused the order dated 13.11.2024.
6. It appears that vide order dated 13.11.2024, operation of the judgment
dated 16.05.2024 and decree dated 30.05.2024, passed by the learned Civil
Judge, Barpeta, in Title Appeal No. 47/2022, was stayed till returnable date on
the submission made by the learned counsel for the applicant therein/opposite
party No. 1 herein, that in Title Execution Case No. 33/2024, the learned
executing Court had issued warrant and the matter was fixed on 20.09.2024
and thereafter, on 01.10.2024, for report and thereafter, the matter was again
fixed on 30.10.2024.
7. However, the report of the Bailiff dated 26.09.2024 and the
acknowledgement/receipt of taking over possession of the schedule land by the
decree holder, dated 26.09.2024, and also the order of the learned executing
Court dated 13.11.2024, left no doubt in the mind of this Court that the decree
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has already been executed and khas possession of the decretal land was
handed over to the decree holder on 26.09.2024, long before the order of this
Court dated 13.11.2024. But, suppressing the aforesaid material facts, the
interlocutory application, being I.A.(Civil) No. 3118/2024, was filed and thus, it
appears that the opposite party No. 1 has not approached this Court with clean
hands.
8. In the case of M.C.D. vs. State of Delhi and Anr., reported in
(2005) 4 SCC 605, Hon'ble Supreme Court has held that if a person does not
approach the Court with clean hands and/or if his case is based on falsehood,
the case of such person should be summarily thrown out at any stage of the
litigation.
9. Keeping in mind of the aforesaid proposition of law and also in the given
factual background, as discussed herein above, this Court is of the view that the
order of stay dated 13.11.2024, granted by this Court, was obtained by
suppressing material fact that the decree has already been executed on
26.09.2024.
10. Under such circumstances, this Court is inclined to vacate the order dated
13.11.2024, passed by this Court in I.A.(Civil) No. 3118/2024, arising out of RSA
No. 187/2024.
11. In terms of above, this I.A. stands disposed of.
JUDGE
Comparing Assistant
