Md Ishaque v. M/S Ashok Biri Factory

JUDGMENT AND ORDER

(CAV) Heard Mr. A. Deka, learned counsel representing the petitioner. None appeared for the respondent.

¶2This is an application under Article 227 of the Constitution of India challenging the order dated 19.12.2013 passed by the learned Munsiff No.2, Kamrup at Guwahati in Title Execution Case No.32/03 arising out of Title Suit No.333 of 1997.

¶3The petitioner is the absolute owner of a plot of land measuring 12 lechas covered by K.P. Patta No.121 (Old), 98 (New), Dag No.283 (Old), 266 (New) of village Sahar Guwahati, Mouza-Guwahati in the district of Kamrup, Assam.

¶4There was an Assam Type house situated over the said plot of land. The petitioner was running his business under the name and style of M/s. Indian Tyre Service in the said house.

¶5In the year 1988, some persons had encroached upon a part of the land of the petitioner. A person called Md. Anowar Hussain had demolished a part of the said house.

¶6Therefore, the petitioner filed the suit being Title Suit No.02/1988 in the court of Civil Judge (Jr. Divn.) No.2 at Guwahati.

¶7Be that as it may. Since a portion of the Assam Type House was demolished, a part of the land of the petitioner became vacant.

¶8Adjacent to the land of the petitioner, the respondent has its godown and residence over another plot of land. Since a portion of the land of the petitioner was lying vacant, the respondent used that vacant portion as a road from F.A. Road to its land.

¶9Therefore, the petitioner filed another suit being T.S. No.333/1997 in the court of Civil Judge (Jr. Divn.) No.2 at Guwahati praying for declaration that he is entitled to Page No.# 3/4 restrain the respondent from using his land as a road. The petitioner also prayed for a permanent injunction restraining the respondent from using his land as a passage for plying vehicles.

¶10The trial court issued notice to the respondent. But the respondent did not appear to contest the case. Therefore, on 27.09.2000, the trial court decreed the suit of the petitioner ex parte.

¶11Thereafter, the respondent filed an application before the trial court under Order 9 Rule 13 of the Code of Civil Procedure praying for setting aside the said ex parte decree. The trial court dismissed the said application.

¶12The respondent also filed an application before the trial court for staying execution of the decree dated 27.09.2000. This application was also dismissed.

¶13This time, the respondent moved this Court vide C.R.P No.183/2007. This Court had directed withdrawal of the earlier attachment order and directed the respondent to deposit ₹10,000/- before the trial court. This Court sent back the matter to the trial court for passing further orders after due consideration of the matter.

¶14The petitioner being the decree holder, filed an application before the trial court under Order 21 Rule 32 of the Code of Civil Procedure praying for keeping Shri Suranjan Saha who represented M/s. Ashok Bidi Factory in civil imprisonment.

¶15The learned trial court vide the impugned order dated 19.12.2013 has held that the decree holder failed to prove that the decree passed in T.S. 333 of 1997 was violated by the respondent.

¶16The petitioner used to remain absent at Guwahati and he used to spend most of his time in the State of Bihar. He comes to Guwahati only for short period of time. The petitioner had admitted before the trial court, that during his stay at Guwahati he had not seen the respondent using his land as a road.

¶17Taking into consideration the aforesaid two facts, the trial court dismissed the entire execution case and also returned the amount of ₹10,000/- which was deposited by the respondent in the trial court pursuant to the order of this Court. Page No.# 4/4

¶18I have considered the submissions made by Mr. Deka.

¶19A decree of a civil court remains alive until it is set aside by a superior court. The decree passed in T.S. 333 of 1997 is still alive. The petitioner filed the said suit seeking two reliefs. The first one is-a declaration that the petitioner is entitled to restrain the respondent from using his land as a road and for plying vehicles over his land. The second relief wished by the petitioner is that-the respondent and his agents should be permanently restrained from plying vehicles over his land.

¶20The trial court decreed the suit entirely, meaning that both the reliefs prayed by the petitioner were granted.

¶21This Court is of the opinion that the learned trial court had erroneously oriented itself and passed the impugned order dated 19.12.2013. This order is bad in law and therefore, this order is set aside.

¶22The primary duty of an executing court is to execute the decree. Therefore, the executing court should always endeavour to execute the decree. The executing court is never supposed to frustrate a lawful decree.

¶23The Title Execution Case No.32 of 2003 is remanded to the court of the Munsiff No.2, Kamrup at Guwahati for expeditious disposal in accordance with the procedure as laid down by law.

¶24The executing court is at liberty to use police force to execute the decree. With the aforesaid direction, this revision petition stands allowed and disposed of accordingly. JUDGE Comparing Assistant

PageoNo.#o1/4 GAHC010248042014 ooooooo ooooooooooooooo ooooooooooooooooTHEoGAUHATIoHIGHoCOURTo (HIGHoCOURToOFoASSAM,oNAGALAND,oMIZORAMoANDoARUNACHALoPRADESH)o CaseoNo.o:oCRP/119/2014ooooooooo MDoISHAQUEo S/O-oLT.oABDULoGANI,oR/OoVILL.oandoP.O.-oGANIYARIoVIAoSILOT,oDIST.-o MUZAFFARPUR,oBIHAR,oPRESENTLYoRESIDINGoAToJANATAoTYREo SERVICE,oG.S.oROAD,oGANESHGURI,oP.O.-oDISPUR,oGHY-o6,oASSAM. VERSUSo M/SoASHOKoBIRIoFACTORYo AoFIRMoHAVINGoITSoBRANCHoOFFICEoSITUATEDoAToA.T.oROAD,oGHY-o1,o KAMRUP,oASSAM. AdvocateoforotheoPetitionerooooo:oMR.HoNATH,oMR.BoDoDEKAo AdvocateoforotheoRespondento:o,oo oooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooo PRESENT THEkHON'BLEkMR.kJUSTICEkPARTHIVJYOTIkSAIKIA oo ooooooooooo For the Petitioner : Mr. A. Deka, oooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooo Advocate. oooooooooooooooooooooooo For the Respondent: None appeared. o oooooooooooooooooooooooo Date of Hearing :ooooooooooo 29.07.2024. oooooooooooo Date of Judgment : 01.08.2024. Page No.# 2/4