Jaharul Haque @ Jaharul Islam vs Fazar Ali
2025 Latest Caselaw 654 Gua

Gauhati High Court

Jaharul Haque @ Jaharul Islam vs Fazar Ali on 16 May, 2025

Author: Devashis Baruah

Bench: Devashis Baruah

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GAHC010165652023




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

                               Case No. : CRP(IO)/237/2023

             JAHARUL HAQUE @ JAHARUL ISLAM
             S/O- LT. SOLOMUDDIN @ SOLIBOR RAHMAN, R/O-RAKHALKILLA, P.S.
             LAKHIPUR, DIST.- GOALPARA (ASSAM)


             VERSUS

             FAZAR ALI
             S/O- LT. JONAB ALI, R/O- RAKHALKILLA, P.S. LAKHIPUR, DIST-
             GOALPARA, (ASSAM)


Advocate for the Petitioner : MR. M U MAHMUD, MR S ISLAM,MRS. M SAIKIA,MR S H
MAHMUD
Advocate for the Respondent : MR M RANA,



                                       BEFORE
                   HON'BLE MR. JUSTICE DEVASHIS BARUAH
                                        ORDER

16.05.2025 Heard Mr M U Mahmud, the learned counsel appearing on behalf of the petitioner and Mr M Rana, the learned counsel appearing on behalf of the respondent.

2. The present application has been filed by invoking the supervisory jurisdiction of this Court under Article 227 of the Constitution of India, challenging the order dated 29.09.2022, passed in Title Execution Case No. 03/2025, whereupon the learned Executing Court, i.e., the Court of learned Munsiff No. 1, Goalpara, had, in exercise of Page No.# 2/3

the powers under Section 47 of the Code of Civil Procedure (for short, "the Code"), corrected the schedule of the land and directed for proceeding with the execution of the decree.

3. The learned counsel appearing on behalf of the petitioner submits that though the petitioner was a defendant in the suit, but the petitioner did not appear in the suit, taking into account that the land in question was not the land, wherein the petitioner was actually in possession, and as such, it was not necessary. He further submitted that subsequent to the decree being passed in a completely different land, which can also be seen from the order dated 24.01.2019, as well as the order dated 29.09.2022, the decree holders have now proceeded to execute a decree in respect of a land, which belongs to the petitioner.

4. This Court enquired with the learned counsel appearing on behalf of the petitioner, as to whether the petitioner has filed any application for setting aside the ex parte Judgment and Decree, taking into account that the Judgment and Decree was passed ex parte against the petitioner. The learned counsel submits that there was no necessity for filing an application for setting aside the Judgment and Decree, taking into account that the land which was decreed, was not the land where the petitioner is in occupation. He, however, submits that at present, the petitioner would be well advised to file such applications, seeking setting aside the said Judgment and Decree. However, he submits that taking into account the present proceedings, the Court may not permit such application. This Court is of the opinion that the present proceeding arises out of an execution proceeding, which have no relation with an application being filed under Order 9 Rule 13 of the Code, or even an appeal filed under Section 96 of the Code, against the Judgment and Decree by the learned trial Court, however, subject to being permissible as per law.

5. This Court further enquired with the learned counsel appearing on behalf of the respondent herein, as regards the application filed by the Decree Holder, seeking amendment of the schedule, as well as also the sale deed, on the basis of which the Page No.# 3/3

decree holders have got the decree. The learned counsel submits that he will file an additional affidavit, bringing on record the said.

6. Taking into account the above, list this matter again, on 16th of July, 2025.

8. Interim order passed earlier, shall continue, till then.

JUDGE

Comparing Assistant