Page No.# 1/8 vs On The Death Of Md. Abdul Wahab His Legal ...
2025 Latest Caselaw 4867 Gua

Gauhati High Court

Page No.# 1/8 vs On The Death Of Md. Abdul Wahab His Legal ... on 21 May, 2025

Author: Devashis Baruah

Bench: Devashis Baruah

                                                                  Page No.# 1/8

GAHC010267472023




                                                           2025:GAU-AS:6450

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

                         Case No. : CRP/188/2023

         ANGURA BEGUM @ ANGURA BEWA AND 4 ORS.
         WIFE OF LATE MD. NUR HUSSAIN, RESIDENT OF VILL- KALITAPARA, P.O.
         AND P.S. GOALPARA, DISTRICT- GOALPARA, ASSAM, PIN- 783101

         2: ATOWAR HUSSAIN @ BABHI
          SON OF LATE NUR HUSSAIN
          RESIDENT OF VILL- KALITAPARA
          P.O. AND P.S. GOALPARA
          DISTRICT- GOALPARA
         ASSAM
          PIN- 783101

         3: AMAN HUSSAIN @ AMANAT HUSAIN
          SON OF LATE NUR HUSSAIN
          RESIDENT OF VILL- KALITAPARA
          P.O. AND P.S. GOALPARA
          DISTRICT- GOALPARA
         ASSAM
          PIN- 783101

         4: NAJIMA SULTANA @ NAJMINA KHANAM
          DAUGHTER OF LATE NUR HUSSAIN
          RESIDENT OF VILL- KALITAPARA
          P.O. AND P.S. GOALPARA
          DISTRICT- GOALPARA
         ASSAM
          PIN- 783101

         5: NAHIMA SULTANA @ NASHIMA KHANAM
          DAUGHTER OF LATE NUR HUSSAIN
          RESIDENT OF VILL- KALITAPARA
          P.O. AND P.S. GOALPARA
          DISTRICT- GOALPARA
         ASSAM
                                                                  Page No.# 2/8

             PIN- 78310

            VERSUS

            ON THE DEATH OF MD. ABDUL WAHAB HIS LEGAL HEIRS MOJIDA
            BEGUM AND ORS.
            ASSAM.

            1.1:MOJIDA BEGUM
            W/O LATE MD ABDUL WAHAB
             R/O VILL- KALITAPARA
             P.O. AND P.S. GOALPARA
             DISTRICT- GOALPARA
            ASSAM. PIN-783101

            1.2:MOINUDDIN ALI
             S/O LATE MD ABDUL WAHAB
             R/O VILL- KALITAPARA
             P.O. AND P.S. GOALPARA
             DISTRICT- GOALPARA
            ASSAM. PIN-783101

            1.3:ANJUFA BEGUM
             D/O LATE MD ABDUL WAHAB
             R/O VILL- KALITAPARA
             P.O. AND P.S. GOALPARA
             DISTRICT- GOALPARA
            ASSAM. PIN-783101

            1.4:ASMINA BEGUM
             D/O LATE MD ABDUL WAHAB
             R/O VILL- KALITAPARA
             P.O. AND P.S. GOALPARA
             DISTRICT- GOALPARA
            ASSAM. PIN-783101

            2:MD. KABUL HUSSAIN
             SON OF LATE ABDUL LATIF
             RESIDENT OF VILL- KALITAPARA
             P.O. AND P.S. GOALPARA
             IN THE DISTRICT OF GOALPARA
            ASSAM
             PIN- 78310

For the Petitioner(s)     : Mr. J. Deka, Advocate
For the Respondent(s)     : Mr. B.D. Deka, Advocate
                                                                      Page No.# 3/8



Date of Hearing                   : 21.05.2025
Date of Judgment                  : 21.05.2025

                                  BEFORE
                   HONOURABLE MR. JUSTICE DEVASHIS BARUAH

                         JUDGMENT AND ORDER (ORAL)

Heard Mr. J. Deka, the learned counsel appearing on behalf of the petitioners. Mr. B.D. Deka, the learned counsel appears on behalf of the respondents.

2. The supervisory jurisdiction of this Court has been invoked to challenge the order dated 26.04.2023 passed by the learned Court of the Civil Judge (Jr. Div.) No. 1, Goalpara (hereinafter referred to as, "the learned Executing Court") in Title Execution Case No. 10/2013 whereby the learned Executing Court dismissed the execution application filed by the petitioners by allowing the petition filed under Section 47 of the Code of Civil Procedure, 1908 (for short, "the Code").

3. The facts in the instant case are that the predecessor-in-interest of the petitioners had filed a suit before the learned Court of the Munsiff No. 1, Goalpara (hereinafter referred to as, "the learned Trial Court") which was registered and numbered as Title Suit No. 70/1985 against one Abdul Wahab, the predecessor-in-interest of the principal respondents herein who was the defendant in the said suit. The said suit was decreed vide the judgment and decree dated 31.07.1989 whereby the learned Trial Court granted the reliefs sought for in the suit and the defendant in the suit was directed to vacate the Page No.# 4/8

disputed land within 1 (one) month from the date of the judgment and decree failing which the defendant would be evicted from the disputed land in the process of law.

4. The defendant thereupon preferred an appeal before the learned Court of the District Judge, Goalpara (hereinafter referred to as, "the learned First Appellate Court") which was registered and numbered as Title Appeal No. 18/1989. The learned First Appellate Court vide its judgment and decree dated 12.08.1994 dismissed the appeal and affirmed the judgment and decree passed by the learned Trial Court dated 31.07.1989. However, in doing so the learned First Appellate Court granted the defendant 3 (three) months time to vacate the suit land. The defendant thereupon preferred an appeal before this Court which was registered and numbered as Second Appeal No. 178/1995. The learned Coordinate Bench of this Court vide the judgment and order dated 14.08.2001 dismissed the Second Appeal. In doing so, the learned Coordinate Bench of this Court had observed that no case for interference which arose against the judgment and decree passed by the learned First Appellate Court.

5. It is further relevant to take note of that on 25.09.2013, the execution proceedings was filed by the decree holders which was registered and numbered as Title Execution Case No. 10/2013. The principal respondents herein who were the judgment debtors filed an application under Section 47 of the Code stating inter alia that the said execution application had been filed after a lapse of 12 years 1 month 11 days from 14.08.2001 and as such the same was barred by limitation in terms with Article 136 of the Schedule to the Limitation Act, 1963 (for short, "the Act of 1963").

Page No.# 5/8

6. It is further relevant to take note of that pursuant thereto a petition was filed by the decree holders under Section 17(2) of the Act of 1963 praying for extension of the period of execution. The learned Executing Court vide the order dated 26.04.2023 allowed the said application filed under Section 47 and dismissed the execution proceedings and it is under such circumstances the present proceedings have been filed.

7. Mr. J. Deka, the learned counsel appearing on behalf of the petitioners submitted that the learned First Appellate Court vide its judgment and decree dated 12.08.1994 permitted 3 (three) months to the defendant to vacate the suit premises and therefore the decree could have been put to execution only after 3 (three) months from the date of the judgment and decree. He submitted that the appeal filed thereagainst was dismissed on merits and without modifying the judgment and decree passed by the learned First Appellate Court or in other words this Court had affirmed the judgment and decree passed by the learned First Appellate Court. He therefore referred to the judgment of the Supreme Court in the case of Ratan Singh Vs. Vijay Singh & Others reported in (2001) 1 SCC 469 as well as the judgment of the Supreme Court in the case of

Chandi Prasad & Others Vs. Jagdish Prasad & Others reported in (2004) 8 SCC

724.

8. Per contra Mr. B.D. Deka, the learned counsel appearing on behalf of the principal respondents submitted that the judgment and decree passed by the learned First Appellate Court dated 12.08.1994 though had granted 3 (three) months time, but in view of the doctrine of merger, the said First Appellate Decree no longer survives and it merges with the judgment and decree passed Page No.# 6/8

by this Court and as such the period of limitation has to be taken w.e.f. 14.08.2001. He further submitted that in the instant case the petitioners also knew that there was a delay and as such they had filed a petition under Section 17(2) of the Act of 1963 explaining the delay and under such circumstances, the learned Court below had not committed any error in its jurisdiction in dismissing the said execution proceedings and allowing the application under Section 47 of the Code. The learned counsel appearing on behalf of the principal respondents further laid emphasis that in the instant case the First Part of the Article 136 of the Schedule to the Act of 1963 would apply and not the Second Part taking into account that the learned First Appellate Court's judgment and decree had merged with the judgment and decree passed by this Court.

9. I have heard the learned counsels appearing on behalf of the parties and have given my anxious consideration.

10. This Court, in the previous segments of the instant judgment has duly mentioned the dates on which the judgment and decree were passed by the learned Trial Court, the learned First Appellate Court as well as by this Court. The learned Trial Court though had decreed the suit in favour of the plaintiff vide the judgment and decree dated 31.07.1989 but granted 1 (one) month time to the defendants to vacate the suit property. The learned First Appellate Court while affirming the said judgment and decree passed by the learned Trial Court dated 31.07.1989 but modified the said decree to the extent of granting 3 (three) months time to the defendant to vacate the suit property. It is seen that thereupon an appeal was preferred by the defendant and the said appeal was dismissed without there being any modification to the judgment and decree Page No.# 7/8

passed by the learned First Appellate Court.

11. It is further relevant to take note of that the judgment and decree passed by the learned First Appellate Court though merges with the judgment and order passed by this Court, but as there was no modification to the judgment and decree passed by the learned First Appellate Court rather it was a confirmation of the judgment and decree passed by the learned First Appellate Court, it has to be understood that this Court has also permitted 3 (three) months time to the defendant to vacate the suit premises.

12. Taking into account the above, it is the opinion of this Court that the Second Part of Article 136 of the Schedule to the Act of 1963 would be applicable and the petitioners herein could have filed the execution application on or before 13.11.2013 and the execution application having been filed on 25.09.2013, in the opinion of this Court was within the period of limitation. Accordingly, this Court sets aside the impugned order dated 26.04.2023 and restores the execution proceeding being Title Execution Case No. 10/2013 to the file of the learned Executing Court i.e. the learned Court of the Civil Judge (Jr. Div.) No. 1, Goalpara and the learned Executing Court shall proceed with the execution proceedings in accordance with law.

13. This Court at this stage finds it relevant to take note of the submission of the learned counsel for the respondents that the petitioners had admitted the delay by filing an application seeking condonation of delay. The said submission is misconceived inasmuch as when the execution application was filed within time, the mere filing of an application seeking extension of time would not Page No.# 8/8

affect the rights of the decree holder to seek execution if the application filed was within time. At the cost of repetition, it is reiterated that the application filed seeking execution was well within the period of limitation.

14. Taking into account that the proceedings being Title Execution Case No. 10/2013 has been restored to the file of the learned Executing Court and the parties are duly represented, they are directed to appear before the learned Executing Court on 18.06.2025 for further proceedings of the execution proceedings.

15. With the above observations and directions, the instant petition stands disposed of.

16. The Registry shall return the LCR ensuring that the same are placed before the learned Executing Court on or before the next date so fixed by this Court hereinabove.

JUDGE

Comparing Assistant