Gauhati High Court
Page No.# 1/5 vs Abdul Hakim @ Hakim Ali Talukdar And Anr on 16 May, 2025
Author: Devashis Baruah
Bench: Devashis Baruah
Page No.# 1/5
GAHC010251242024
2025:GAU-AS:6175
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : CRP(IO)/501/2024
MONIJA KHATUN
W/O- ABU JAFAR ALI KHALIFA,
R/O- VILLAGE ROWMARI (JOYPUR),
P.O- BAGAUN ,
DIST- GOALPARA, ASSAM, PIN-783129
VERSUS
ABDUL HAKIM @ HAKIM ALI TALUKDAR AND ANR
S/O- LATE CHAN MAMUD
2:ABDUL HASHEM @HASHEM ALI TALUKDAR
S/O- LATE CHAN MAMUD
BOTH ARE R/O- VILLAGE ROWMARI (JOYPUR)
P.O- BAGAUN
DIST- GOALPARA
ASSAM
PIN-78312
For the Petitioner(s) : Mr. G. Bharadwaj, Advocate
For the Respondent(s) : Mr. A.M. Khan, Advocate
BEFORE
HONOURABLE MR. JUSTICE DEVASHIS BARUAH
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ORDER
Date : 16.05.2025
Heard Mr. G. Bharadwaj, the learned counsel appearing on behalf of
the petitioner. Mr. A.M. Khan, the learned counsel appears on behalf of
the respondents.
2. The supervisory jurisdiction of this Court has been invoked to
challenge the order dated 27.08.2024 passed by the learned Court of the
Civil Judge (Senior Division), Goalpara (hereinafter referred to as, "the
learned Trial Court") in Misc (J) Case No. 50/2023 arising out of Title Suit
No. 05/2017 as well as the order dated 27.08.2024 in Title Execution
Case No. 02/2023 by the learned Executing Court which is also the
learned Trial Court.
3. It is seen from a perusal of the materials on record that a suit was
filed by the petitioner as plaintiff which was registered and numbered as
Title Suit No. 05/2017. After summons were issued the respondents
herein who were the defendants, appeared before the learned Trial Court
and filed their written statement as well as counter claim. Thereupon, the
suit was fixed on 10.05.2022, on which date, the learned counsel
appearing on behalf of the plaintiffs sought for time to file the additional
written statement. The said prayer was allowed and the Court fixed the
matter on 27.05.2022 for filing of the additional written statement. On
the said date as the respondents herein who were the defendants did not
appear, the learned Trial Court passed an order to proceed ex-parte
against them. Thereupon on 02.07.2022, the learned Trial Court decreed
the suit in favour of the plaintiffs. It is relevant to take note of that the
plaintiff did not file their additional written statement against the counter
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claim and the learned Trial Court even did not care to frame issues in
spite of the fact that pleadings of both the parties were there on record.
4. It is further seen that pursuant to the decree passed on 02.07.2022
in Title Suit No. 05/2017, an execution application was filed in the year
2023 by the petitioner herein which was registered and numbered as
Title Execution Case No. 02/2023. Upon receipt of the notice in the said
execution proceedings, the respondents herein filed an application under
Order IX Rule 13 of the Code of Civil Procedure, 1908 along with an
application for delay condonation. The said application was registered
and numbered as Misc (J) Case No. 50/2023. The learned Trial Court vide
an order dated 27.08.2024 allowed the said application under Order IX
Rule 13 of the Code thereby setting aside the judgment and decree dated
02.07.2022. The consequential effect of setting aside the judgment and
decree dated 02.07.2022 was that the execution proceedings cannot
survive, for which, a consequential order was passed in Title Execution
Case No. 02/2023 whereby the execution proceedings was also
dismissed. It is under such circumstances, the petitioner who was the
plaintiff/the decree holder has approached this Court by filing the instant
application under Article 227 of the Constitution.
5. This Court has duly heard the learned counsels appearing on behalf
of the parties and has given an anxious consideration to the impugned
order dated 27.08.2024 passed in Misc (J) Case No. 50/2023.
6. This Court is shocked and surprised taking note of that on 27.05.2022
the additional written statement was required to be filed by the plaintiff
against the counterclaim. Thereupon no date was fixed for framing of
issues or further proceedings with the suit, but the learned Trial Court
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had decreed the suit vide the judgment and decree dated 02.07.2022.
This aspect of the matter was duly noticed by the learned Trial Court
while adjudicating the application under Order IX Rule 13 of the Code as
would appear from the reasons so assigned by the learned Trial Court in
its order dated 27.08.2024. The reasons so assigned in the opinion of this
Court is just and proper, for which, the question of interference with the
order dated 27.08.2024 passed in Misc (J) Case No. 50/2023 arising out
of Title Suit No. 05/2017 do not call for any interference.
7. Further to that, taking into account that there being a no decree, the
question of the execution proceedings cannot survive. Accordingly, the
consequential order passed on 27.08.2024 thereby dismissing the Title
Execution Case No. 02/2023 also do not call for any interference.
Accordingly, this Court finds no ground to interfere in exercise of its
supervisory jurisdiction, for which, the instant petition stands dismissed.
8. This Court further takes note of that vide an order dated
06.12.2024, the further proceedings of Title Suit No. 05/2017 pending
before the learned Trial Court i.e. the learned Court of the Civil Judge
(Senior Division), Goalpara was stayed. The said interim order is vacated
and the parties herein being duly represented are directed to appear
before the learned Trial Court on 16.06.2025 for further proceedings of
the said suit.
9. It is however observed that the observations so made herein shall
not affect either of the parties in the proceedings of the learned Trial
Court.
10. The LCR be forthwith sent by the Registry ensuring that the said
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records are available before the learned Trial Court on the date so fixed
herein above. In that regard, if necessary, the Registry shall employ the
services of a special messenger.
JUDGE
Comparing Assistant
