Page No.# 1/6 vs Jaymati Islary
2025 Latest Caselaw 5050 Gua

Gauhati High Court

Page No.# 1/6 vs Jaymati Islary on 28 May, 2025

Author: Devashis Baruah

Bench: Devashis Baruah

                                                                        Page No.# 1/6

GAHC010096912025




                                                              2025:GAU-AS:6885

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

                             Case No. : CRP/68/2025

          NEERA BRAHMA
          W/O- SRI RACHENDRA NATH BRAHMA, R/O- KOKRAJHAR TOWN, W/NO.-
          8 (HADANPARA) P.O AND P.S- KOKRAJHAR, DIST.- KOKRAJHAR, BTC,
          ASSAM, PIN - 783370



          VERSUS

          JAYMATI ISLARY
          W/O- LATE ANATH ISLARY, R/O- VILL- KUKURMARI, P.O. AND P.S-
          DHALIGAON, DIST. - CHIRANG, BTC, ASSAM, PIN - 783385




                                 BEFORE
               HON'BLE MR. JUSTICE DEVASHIS BARUAH



Advocate for the petitioner(s): Mr. MU Mahmud



Advocate for the respondent(s): Mr. BJ Mukherjee

Page No.# 2/6

Date of hearing & judgment : 28.05.2025

JUDGMENT & ORDER(ORAL)

Heard Mr. MU Mahmud, the learned counsel appearing on behalf of the petitioner. Mr. BJ Mukherjee, the learned counsel appears on behalf of the respondent.

2. The petitioner herein has invoked the supervisory jurisdiction of this Court assailing the orders dated 12.03.2025 passed in Misc.(J)Case No.79/2024 arising out of Title Appeal No.11/2024 and also the order dated 12.03.2025 passed in Title Appeal No.11/2024 which are Annexure-11 and 12 respectively to the instant proceedings.

3. It is relevant to take note of that vide the order dated 12.03.2025 passed in Misc.(J).Case No.79/2024, the Court of the learned Civil Judge (Senior Division) Chirang at Kajalgaon (hereinafter to be referred to as the 'learned First Appellate Court') had condoned the delay of 861 days in preferring the appeal i.e. Title Appeal No.11/2024. It is also seen that vide another order dated 12.03.2025 in Petition No.430/2025, the learned First Appellate Court had also stayed the execution of the decree passed in Title Suit No.02/2020 and it is under such circumstances, the present proceedings has been filed.

4. For the purpose of ascertaining the dispute herein, it is relevant to take note of that the respondent herein as plaintiff had filed a suit before the Court Page No.# 3/6

of the learned Munsiff, Chirang, at Kajalgaon (hereinafter to be referred to as the learned Trial Court) which was registered and numbered as Title Suit No.02/2020. It is relevant to take note of that the suit so filed by the respondent herein was a suit for specific performance of agreement for sale as well as for other consequential reliefs.

5. It is an admitted fact that the suit proceeded ex-parte against the respondent herein and vide the judgment and decree dated 24.05.2022, the learned Trial Court decreed the suit in favour of the petitioner thereby directing the respondent to execute and register a sale deed in respect to the suit land in favour of the petitioner after obtaining the ' No Objection Certificate' and necessary permission from the concerned department in compliance with the terms of the Money Borrowing Agreement dated 29.12.2017 within a period of 3(three) months from the date of the judgment and further handover khas possession of the suit land to the petitioner herein immediately after registration of the sale deed. It was further decreed that in the event of the failure by the respondent herein to comply with the aforesaid direction, the petitioner herein shall be entitled to get executed and register the sale deed with regard to the suit land in his favour through the Court via the Senior Sub-Registrar Chirang and other authorities and upon being paid the requisite stamp duty, fees etc., by the petitioner herein required precept/direction made to be issued in this regard by the Court.

6. The record further reveals that pursuant to the said ex-parte judgment and decree, an execution application was filed by the petitioner herein which was registered and numbered as Title Execution Case No.1/2022. The said execution Page No.# 4/6

proceedings was filed on 16.11.2022. It is also relevant to take note of that the said execution proceedings proceeded without notice being issued upon the respondent herein though required under the provisions under Order XXI Rule 32 of the Code. Thereupon the learned Executing Court through the Civil Sheristadar got the Deed of Sale registered on 31.12.2022 in favour of the petitioner herein. Subsequent thereto, the execution proceedings was disposed of vide an order dated 24.02.2023 which was also behind the back of the respondent herein.

7. The petitioner herein taking into account that though the Deed of Sale was executed, but possession was not handed over, filed yet another execution proceedings being Title Execution No.4/2023 on 15.09.2023. The said execution proceedings was withdrawn by the petitioner herein on 16.02.2024. Subsequent thereto, the earlier execution case being Title Execution Case No.1/2022 was revived and the police went to the suit land on 28.05.2024. When the police went to the suit land on 28.05.2024, the respondent herein came to learn about the passing of the judgment and decree dated 24.05.2022 in Title Suit No.02/2020. Subsequent thereto, the respondent herein applied for a certified copy and filed a proceedings under Order IX Rule 13 of the Code for setting aside the ex-parte judgment and decree dated 24.05.2022 in Title Suit No.02/2020 on 02.07.2024. However, on legal advice, the said proceedings under Order IX Rule 13 was withdrawn on 06.11.2024 and on that very day, the appeal was filed against the judgment and decree dated 24.05.2022 along with an application under Section 5 of the Limitation Act, 1963, read with Order XLI Rule 3A of the Code. Along with the Appeal which was registered as Title Appeal No.11/2024, the respondent herein also filed an application under XLI Rule 5 for Page No.# 5/6

stay of the execution of the judgment and decree dated 24.05.2022 in Title Suit No.02/2020.

8. The learned First Appellate Court vide a detailed order dated 12.05.2025 taking into account the facts had exercised its discretion to condone the delay of 861 days in filing the appeal.

9. Further to that, the learned First Appellate Court also by assigning reasons had stayed the execution of the judgment and decree dated 24.05.2022 in Petition No.430/2025. It is under such circumstances, that the present proceedings has been filed.

10. This Court had heard the learned counsel appearing on behalf of the petitioner as well as the learned counsel appearing on behalf of the respondent, who is on caveat. This Court further has also perused the materials on record.

11. In the foregoing paragraphs of the instant order, this Court has duly mentioned the dates when the ex-parte judgment and decree was passed and what further steps was taken by the Respondent herein pursuant to having knowledge about the ex-parte judgment and decree. This Court has further taken note of that the learned First Appellate Court has also duly assigned the reasons for condoning the delay. Further to that, this Court has also taken into consideration that the appeal having been admitted, the learned Trial Court had also stayed the execution taking into account that if the further execution of the judgment and decree dated 24.05.2022 in Title Suit No.02/2022 is not stayed, Page No.# 6/6

the appeal would become meaningless.

12. Considering the above, this Court does not find any ground for exercising its supervisory jurisdiction against the impugned order dated 12.03.2025 passed in Misc.(J)Case No.79/2024 as well as the order dated 12.03.2025 in Petition No.430/2025.

13. With the above, the revision petition stands disposed of.

JUDGE

Comparing Assistant