Page No.# 1/8 vs Shankar Banik And Anr
2025 Latest Caselaw 4969 Gua

Gauhati High Court

Page No.# 1/8 vs Shankar Banik And Anr on 26 May, 2025

Author: Devashis Baruah

Bench: Devashis Baruah

                                                                  Page No.# 1/8

GAHC010102622025




                                                            2025:GAU-AS:6778

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

                          Case No. : CRP/66/2025

         VIJOY CHAND GOLCHA AND ANR
         S/O LATE CHAGANMAI GOLCHA, R/O 176, JAMUNALAL BAJAJ STREET,
         KOLKATA, WEST BENGAL.

         2: M/S LALCHAND CHAGANMAL

          EAST BAZAR
          P.O. KARIMGANJ 788711
          DIST. KARIMGANJ
          ASSAM
          REPRESENTED BY ITS ATTORNEY HOLDER SRI MAGAN LAL BAI

         VERSUS

         SHANKAR BANIK AND ANR
         S/O LATE NANI GOPAL BANIK, R/O MADAN MOHAN ROAD, P.O.
         KARIMGANJ 788710, DIST. KARIMGANJ, ASSAM.

         2:RAMANAUJ BANIK

          S/O LATE NANI GOPAL BANIK
          R/O MADAN MOHAN ROAD
          P.O. KARIMGANJ 788710
          DIST. KARIMGANJ
          ASSAM


Advocate for the Petitioners     : Mr. G. N. Sahewalla,
                                    Sr. Advocate
                                    Ms. S. Todi, Advocate

  Advocate for the Respondents : Mr. B. K. Sen, Advocate
                                                           Page No.# 2/8


                           BEFORE
     HONOURABLE MR. JUSTICE DEVASHIS BARUAH
                 Date of Hearing       : 26.05.2025

                 Date of Judgment      : 26.05.2025
                JUDGMENT AND ORDER (ORAL)

Heard Mr. G. N. Sahewalla, the learned senior counsel assisted by Ms. S. Todi, the learned counsel appearing on behalf of the petitioners and Mr. B. K. Sen, the learned counsel who appears on behalf of the respondent No.2.

2. The manner in which the learned Executing Court had exercised its jurisdiction in the Execution Case No.01/2016 shocks this Court, and as such, the instant proceedings is taken up for disposal at the stage of motion itself.

3. This Court also takes into account that the respondent Nos.1 & 2 herein have jointly filed an application under Section 47 of the Code of Civil Procedure, 1908 (for short, 'the Code') and the said application was filed on the basis of an affidavit filed by the respondent No.2. This Court finds no necessity of issuance of notice upon the Respondent No.1 as the same would only delay the execution proceedings unnecessarily and the interest of the Respondent No.1 is duly protected by the Respondent No.2 who is on caveat.

Page No.# 3/8

4. It is seen from the materials on record that the learned Coordinate Bench of this Court in RSA No.07/2001 decreed the suit in favour of the plaintiffs in so far as Schedule 4 is concerned. Paragraph No.20 of the said judgment passed by this Court dated 15.05.2012 in RSA No.07/2001 is quoted herein under:-

"20. In view of the aforesaid discussions, I am of the view that while

the plaintiff No. 1 is entitled to the declaration of his landholder right by right of purchase vide Ext. 8 sale deed dated 14.06.1978 in respect of the 50% of Schedule 4 land and also the plaintiff No. 3 to the decree declaring his status as tenant in respect of the remaining Schedule 4 land, the plaintiff Nos. 1 and 2 are not entitled to the declaration of their right in respect of the Schedule 3 land as prayed for. Hence while affirming the judgment and decree passed declaring the plaintiff No. 1's right in respect of 50% of the Schedule 4 land and of the plaintiff No. 3's status as tenant in respect of the remaining 50% of the Schedule 4 land as well as eviction of defendants from 50% of the land in Schedule 4, the decree passed declaring the right of plaintiff Nos.1 and 2 in respect of the Schedule 3 land is set aside."

5. From a perusal of the above quoted portion of the judgment, it would be seen that the learned Coordinate Bench of this Court while affirming the judgment and decree passed by the learned First Appellate Court in Title Appeal No.37/1998 Page No.# 4/8

declared that the plaintiff No.1's rights is in respect of 50% of the Schedule 4 land and the plaintiff No.3's status as tenant is in respect of the remaining 50% of the Schedule 4 land as well as eviction of the defendants is from 50% of the land in Schedule 4. The learned Coordinate Bench of this Court further observed that the declaration so made in favour of the plaintiff Nos.1 & 2 in respect of the Schedule 3 land was set aside. It is seen that pursuant thereto, a Title Execution Case No.01/2016 was filed wherein the decree holders prayed for recovery of khas possession of the Schedule 4 land described therein by evicting the judgment debtors/defendants and also for demolishing the

structures, houses made in the 4th Schedule land and to deliver

possession of the 4th Schedule land to the decree holders/plaintiffs by the Court.

6. Subsequent to the filing of the said execution proceedings, an application was filed by the judgment debtors stating inter- alia that the decree is not executable. Vide an order dated 08.07.2019, the said application was rejected and a writ of possession was issued in favour of the Civil Nazir for execution of the decree.

7. Challenging the said order dated 08.07.2019, a proceedings was filed by the judgment debtors before this Court which was Page No.# 5/8

registered and numbered as CRP(IO) No.231/2019. In the said proceedings, the counsel who represented the judgment debtors categorically submitted that the judgment debtors have no objection in so far as the execution of the decree in respect to Schedule 4 property is concerned and if it is done within the parameters of the Schedule 4 property as described in the Execution Application. The only objection which was put before this Court was that the Executing Court while delivering the possession of the Schedule 4 property should not deliver the Schedule 3 property in respect to which there is no decree for delivery of possession.

8. This Court vide an order dated 29.11.2021 in CRP(IO) No.231/2019 did not interfere with the order dated 08.07.2019 passed by the learned Executing Court and further observed that the learned Executing Court while issuing the writ of possession shall direct the Civil Nazir to execute and deliver the possession of the Schedule 4 property to the decree holders in accordance with the boundaries as mentioned in Schedule 4 of the execution application.

9. Subsequent thereto, the learned Executing Court for reasons best known had issued a writ for delivery of possession of all the Schedules to the plaint, i.e. Schedule 1, Schedule 2, Schedule 3 and Schedule 4 although the judgment and decree which had Page No.# 6/8

been passed by the learned Coordinate Bench of this Court was only in respect to the Schedule 4 property and more particularly as regards 50% of the said property of the Schedule 4. Under such circumstances, an application was filed under Section 47 of the Code by the judgment debtors which was registered as Misc. (J) Case No.294/2025. The decree holders filed an objection to the said petition filed under Section 47 of the Code and further admitted that the delivery of possession could have been only in respect to the Schedule 4 property. However, to the utter astonishment of this Court, the learned Executing Court vide an order dated 29.04.2025 dismissed the entire execution proceedings, and it is under such circumstances, the present proceedings have been filed.

10. I have heard the learned counsels appearing on behalf of the parties and have given my anxious consideration. It is seen from the judgment and decree passed by the learned Coordinate Bench of this Court dated 15.05.2012 in RSA No.07/2001 that the plaintiff No.1's right in respect of 50% of the Schedule 4 land and the plaintiff No.3's status as tenant in respect of the remaining 50% of the Schedule 4 land as well as eviction of the defendants from 50% of the land in Schedule 4 was decreed. Therefore, there is an executable decree in so far as 50% of the Schedule 4 land. Under such circumstances, the learned Page No.# 7/8

Executing Court could not have dismissed the execution application.

11. Now let this Court take note of the submission of Mr. B. K. Sen, the learned counsel who represents the judgment debtors. The learned counsel submitted that the 50% of the decreetal land in Schedule 4 is not identifiable, and as such, the learned Executing Court was justified in dismissing the said application. The said submission so made is totally misconceived taking into account that the power under Section 47 of the Code conferred upon the learned Executing Court is not only to execute the decree but also to deal with all questions relating to discharge and satisfaction of the decree. The executable decree so passed by the learned Coordinate Bench of this Court being 50% of the Schedule 4 land, it is therefore the bounden duty of the learned Executing Court to identify the area which would fall within the purview of 50% of the Schedule 4 land and thereupon deliver the possession. The dismissing of the entire execution application amounts to non-exercising the jurisdiction conferred upon the learned Executing Court by law. It is also a settled position of law that the learned Executing Court has to take effective steps so that the fruits of the decree can be enjoyed by the decree holders.

12. Under such circumstances, this Court interferes with the Page No.# 8/8

order passed by the learned Executing Court dated 29.04.2025 passed in Misc.(J) Case No.294/2025 arising out of Title Execution Case No.01/2016 in so far as dismissing the execution proceedings.

13. This Court further disposes of the instant proceedings with the following observations and directions:-

(i) The Title Execution Case No.01/2016 is restored to the file of the learned Executing Court, i.e. the Court of the learned Civil Judge (Junior Division) No.1, Sribhumi.

(ii) This Court further directs the learned Executing Court to execute the decree by indentifying the 50% of the Schedule 4 land and in that regard by taking help of the Revenue Authorities and deliver possession to the decree holders.

(iii) This Court taking into account that the Title Execution Case No.01/2016 is restored to the file of the learned Executing Court directs the parties to appear before the learned Executing Court on 13.06.2025 for further proceedings in Title Execution Case No.01/2016.

JUDGE

Comparing Assistant