Md. Hussan Ali @ Hasan Ali and Anr v. On the Death of Md. Hamir Ali His Legal Heirs, Tomjida Bewa and 6 Ors

ORDER Page No.# 3/4

06.03.2024

Heard Mr. RP Sarmah, the learned senior counsel appearing on behalf of the petitioners.

¶2This is an application under Article 227 of the Constitution for quashing of the order dated 19.01.2024 passed in Misc.(J) Case No.35/2019 in Title Execution Case No.7/2018 by the Court of the learned Civil Judge Junior Division No.1 Darrang at Mangaldoi. A perusal of the impugned order reveals that the said order has been passed in a proceeding under Section 47 read with Section 151 of the Code of Civil Procedure, 1908 (for short, the Code).

¶3The basic ground on which the application under Section 47 was filed challenging the executability of the decree was that the plaintiff who was the respondent in the second appeal being RSA No.30/2005 had died during the pendency of the said appeal and under such circumstances, as the plaintiff was not substituted during the second appeal proceedings the decree is not executable.

¶4This Court has duly taken note of that the decree in Title Suit No.16/2017 dated 30.06.2006 was passed in favour of the plaintiff. Thereupon the said appeal preferred by the petitioners herein who were the appellant was dismissed by the judgment and decree dated 22.09.2004. Subsequent thereto, the second appeal was filed being RSA No.30/2005 which was, however, dismissed by this Court on 17.07.2015. Even taking into account that the decree holder had expired during the pendency of the second appeal proceedings, then Page No.# 4/4 also the non-substitution of the legal representatives of the decree holder would have abated the appeal. The same would not, however, effect the judgment and decree which was passed on 30.06.2006 in Title Suit No.16/1977.

¶5This Court has also perused the order dated 19.01.2024 which has been passed by the learned Executing court and is of the opinion that there are no error of law as well as error in exercise of the jurisdiction. Consequently, this Court finds no merit in the instant proceeding for which the same stands dismissed. However, in the peculiar facts of the case, no costs.

JUDGE Comparing Assistant

PageoNo.#o1/4 GAHC010038052024 ooooooo ooooooooooooooo ooooooooooooooooTHEoGAUHATIoHIGHoCOURTo (HIGHoCOURToOFoASSAM,oNAGALAND,oMIZORAMoANDoARUNACHALoPRADESH)o CaseoNo.o:oCRP/30/2024o MD.oHUSSANoALIo@oHASANoALIoANDoANRo S/O-oLATEoGAMIoSHEIKHo@oGOMIoSHEIKH,oR/O-oMARUAoCHOWKI,oP.S.o SIPAJHAR,oDIST.oDARRANG,oASSAM,oPIN-o784145. 2:oMD.oHASMAToALI oS/O-oLATEoGAMIoSHEIKHo@oGOMIoSHEIKH oR/O-oMARUAoCHOWKI oP.S.oSIPAJHAR oDIST.oDARRANG oASSAM oPIN-o784145o VERSUSo ONoTHEoDEATHoOFoMD.oHAMIRoALIoHISoLEGALoHEIRS,oTOMJIDAoBEWAo ANDo6oORS.o W/O-oLATEoHAMIRoALI,oR/O-oMARUAoCHOWKI,oP.S.oSIPAGHAR,oDIST.o DARRANG,oASSAM,oPIN-o784145. 2:HAFIJUDDINoAHMED oS/O-oLATEoHAMIRoALI oR/O-oMARUAoCHOWKI oP.S.oSIPAGHAR oDIST.oDARRANG oASSAM oPIN-o784145. 3:HARUNoALI oS/O-oLATEoHAMIRoALI oR/O-oMARUAoCHOWKI oP.S.oSIPAGHAR oDIST.oDARRANG oASSAM oPIN-o784145. Page No.# 2/4 4:MD. IFAZUDDIN AHMED S/O- LATE HAMIR ALI R/O- MARUA CHOWKI P.S. SIPAGHAR DIST. DARRANG ASSAM PIN- 784145. 5:AZIDA BEGUM D/O- LATE HAMIR ALI R/O- MARUA CHOWKI P.S. SIPAGHAR DIST. DARRANG ASSAM PIN- 784145. 6:TAZIDA BEGUM D/O- LATE HAMIR ALI R/O- MARUA CHOWKI P.S. SIPAGHAR DIST. DARRANG ASSAM PIN- 784145. 7:MOUZIDA BEGUM D/O- LATE HAMIR ALI W/O- MOUFIZ ALI R/O- MANDAKATA P.S. BAIHATA CHARIALI DIST. KAMRUP ASSAM PIN- 781121 Advocate for the Petitioner : MR. R P SARMAH Advocate for the Respondent : BEFORE HONOURABLE MR. JUSTICE DEVASHIS BARUAH