Smti Birda Rapsang vs . Smti Arky Marbaniang
2022 Latest Caselaw 638 Meg

 Serial No. 40
 Regular List
                 HIGH COURT OF MEGHALAYA
                       AT SHILLONG
CRP No. 17 of 2022
                               Date of Decision: 31.10.2022

Smti Birda Rapsang                  Vs.      Smti Arky Marbaniang

Coram:
                 Hon'ble Mr. Justice H. S. Thangkhiew, Judge


Appearance:
For the Petitioner(s)           :         Mr. K.S. Kharshiing, Adv.

For the Respondent(s)           :         Ms. M. Mawsai, Adv.

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                  JUDGMENT AND ORDER (ORAL)

1. This revision application has been filed under Article 227

of the Constitution impugning the order dated 24.02.2022, by which

the Court of the Additional Judge, District Council Court, Shillong has

stayed the proceedings in the Execution Case for execution of the

Decree in the Title Suit No. 21 of 2013, wherein the Executing Court

had fixed 22.04.2022, as the date of execution.

2. Mr. K.S. Kharshiing, learned counsel for the petitioner

submits that predecessors in interest of the petitioner had instituted a

suit being Title Suit No. 21 of 2013 against the respondent for eviction

of the defendant, or persons claiming under them from Stall No. 1, (suit

property) which has been described in the Schedule of the said Plaint.

He further submits that in spite of receipt of summons, as the respondent

did not contest the Suit, the same proceeded ex parte and a decree was

passed on 24.02.2016. Against this judgment and decree, an appeal was

preferred before the Court of the Judge, District Council Court being

Title Civil Appeal No. 1 of 2016, which he submits came to be

dismissed by order dated 10.02.2020, and in the said order itself, the

Trial Court was directed to proceed with the Execution case.

Subsequently, he submits the Execution Case being No. 4 of 2020, was

filed for execution of the decree and on notice being served, the

respondent filed an objection thereto, which also came to be dismissed

by order dated 24.02.2022 by the Executing Court.

3. The learned counsel further submits that after disposal of

the said objection, the respondent then filed an appeal which was

numbered as No. 4 of 2022 before the Court of the Additional Judge,

District Council Court, Shillong who passed the impugned order which

has been assailed herein. The learned counsel submits that the order is

totally without jurisdiction, inasmuch as, in the main appeal before the

Judge, District Council Court, which had decided the matter on

10.02.2020, it was directed therein that the Execution Case shall

proceed. He further submits that the order has re-opened the matter,

which has already been decided, as such the same deserves to be

interfered with by this Court in exercise of the powers under Article 227

of the Constitution.

4. Ms. M. Iawsai, learned counsel for the respondent has

raised several objections, one of which being the executability of the

decree. It is her contention, that the decree for which the execution is

sought does not pertain to the shop which is in the possession of her

mother. She has also touched on the merits of the matter, which this

Court is not inclined to enter into, as the same is not under challenge

herein and concerns the issues, which should have been gone into at the

time of adjudication of the Title Suit itself. She has further drawn the

attention of this Court to a counter Suit has been filed by the respondent

before the Trial Court, being Title Suit No. 25 of 2020, and the same as

per her submission, is at the stage of framing of issues. She also submits

that the judgment and decree obtained in the other Title Suit has been

mentioned in the pleadings.

5. Heard the learned counsel for the petitioner and examined

the materials on record. The pointed challenge is to the stay accorded

by the Court of the Additional Judge, District Council Court of the

Execution proceedings, which he submits is without jurisdiction. On

consideration thereof, though valid points have been raised by the

learned counsel for the petitioner assailing the legality of the impugned

order, the fact that cannot be ignored is that the same, is only interim in

nature and pending final hearing. The submissions of the learned

counsel for the petitioner is noted, that the order that had been passed

by the Additional Judge, District Council Court, was without referring

to the proceedings that culminated in the Execution Case. As noted

earlier, as the order is only interim in nature, this Court deems it fit to

dispose of this revision application with the direction that, the Court of

the Additional Judge, District Council Court shall dispose of Misc.

Civil Appeal No. 4 of 2022, preferably within a period of 4(four) weeks,

from the date of a certified copy of this order, is presented before the

said Court. It is further directed that in the consideration of the Appeal,

the learned Court below shall give its adequate attention in considering

the proceedings that has culminated in the Execution case.

6. Registry to transmit back the Lower Court case records

immediately.

7. With the foregoing directions, this matter stands closed and

is accordingly disposed of.

JUDGE

Meghalaya 31.10.2022 "V. Lyndem-PS"