Gauhati High Court
Page No.# 1/5 vs Md Shah Alom on 30 May, 2025
Author: Devashis Baruah
Bench: Devashis Baruah
Page No.# 1/5
GAHC010103352025
2025:GAU-AS:6986
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : CRP(IO)/189/2025
DIPAK DEY
S/O LATE KALIPAD DEY, NAZIRA TOWN, WARD NO. 3, P.O. AND P.S.-
NAZIRA, DIST- SIVASAGAR, ASSAM, PIN-785685
VERSUS
MD SHAH ALOM
S/O LATE SHAH JAMAL, R/O NAZIRA TOWN, D-WARD, P.O. AND P.S.-
NAZIRA, DIST- SIVASAGAR, ASSAM, PIN-785685
Advocate for the petitioner(s): Mr. R Sarma
Advocate for the respondent(s):
BEFORE
HON'BLE MR. JUSTICE DEVASHIS BARUAH
ORDER
30.05.2025
Heard Mr. R Sarma, the learned counsel appearing on behalf of the
petitioner.
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2. The petitioner herein has invoked the supervisory jurisdiction of
this Court challenging the common order dated 11.03.2025 passed in
Petition No.56/2025 and Petition No.85/2025 whereby the Court of
the learned Civil Judge (Junior Division) Nazira, had rejected both the
applications.
3. The instant petition is taken up for disposal at the motion stage
itself.
4. It is seen from the materials on record that the Petition
No.56/2025 was filed by the petitioner stating inter alia, that
Shivanath Dey @ Shibu Dey was one of the defendants/judgment
debtors in the execution proceedings, who expired on 23.06.2015 and
the possessory warrant was issued for delivery of possession of the
decreetal land against a dead person and, therefore, sought for stay
of the execution of the possessory warrant for delivery of possession
of the decreetal land until substitution of the legal heirs of the
judgment debtor No.4 was carried out.
5. This Court at this stage finds it relevant to take note of the
provisions of Section 146 of the Code of Civil Procedure, 1908 (for
short, 'the Code') which categorically stipulates that where any
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proceeding may be taken or application made by or against any
person, then the proceeding may be taken or the application may be
made by or against any person claiming under him.
6. Consequently, as the said Shivanath Dey @ Shibu Dey was alive
at the time when the judgment and decree was passed by the learned
Trial Court, this Court finds no illegality in the impugned order insofar
as the proceedings against the legal representatives of Late Shivanath
Dey @ Shibu Dey.
7. It is further seen that the Petition No.85/2025 was filed before the
learned Trial Court under Order XXI Rule 26 seeking stay of the
execution on the ground that the appeal being RSA No.222/2024 is
pending before this Court.
8. This Court put a pointed question upon Mr. R Sarma, the learned
counsel appearing on behalf of the petitioner as to whether any
substantial question of law has been formulated in the said appeal
and thereby admitting the said appeal. The learned counsel submitted
that the appeal is yet to be admitted by formulating a substantial
question of law. He further submitted that in the said appeal, there is
an application filed for stay of the execution, but without the
substantial question being formulated in the appeal, the said
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application cannot be taken and as such the application was filed
under Order XXI Rule 26.
9. This Court is of the opinion that mere filing of an appeal would
not amount to stay of the execution of the judgment and decree as is
the mandate under Order XLI, Rule 5 of the Code. Further to that, it is
also well settled that without formulating a substantial question of
law, this Court would not have the jurisdiction to pass any order of
stay of the execution. This Court further had duly taken note of the
judgment of the Supreme Court relied upon by the learned Executing
Court i.e. in the case of Periyammal (Dead) through LRS & Ors.
Vs. V. Rajamani and Another etc. reported in Civil Appeal
Nos.3640-3642 of 2025, wherein the Supreme Court had made
certain observations as regards completion of the execution
proceedings.
10. Considering the above, this Court is of the opinion that the
reasons so assigned for rejecting the application under Order XXI,
Rule 26 on the ground that a second appeal is pending before this
Court does not call for any interference.
11. Accordingly, the instant petition being without any merit, for
which, the instant petition stands dismissed. Before parting with the
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record, this Court, however, observes that the order so passed herein
is only in relation to the order dated 11.03.2025 passed in Title
Execution Case No.1/2018. The same shall, however, not impact the
merits in RSA No. 222/2024, as well as any application filed seeking
stay of the judgment and decree.
12. Before parting with the record, this Court observes that the
learned Executing Court shall bring on record the legal representatives
of Late Shivanath Dey @ Shibu Dey, who was the judgment debtor
No.4 for effectively executing the decree of the Court {see V.
Uthirapathi Vs. Ashrab Ali & Ors. reported in (1998) 3 SCC 148,
paragraph 14 & 15}.
13. A copy of this order be transmitted to the learned Executing Court
forthwith by the Registry.
JUDGE
Comparing Assistant
