IMPORTANT POINT
The restoration of the execution case justified subsequent orders, and lack of bona fide intention can impact the court's decision.

JUDGMENT :

Recourse to Article 227 of the Constitution of India has been taken against the impugned orders dated 06.01.2024 and 22.01.2024 passed by the learned Civil Judge (Jr. Division), Hatsingimari, Dhubri in Misc. (J)/59/2022 and Title Execution/10/2019.

2. To understand the issue involved, it would be convenient if the brief facts of the case are narrated.

3. The petitioner is the defendant in the suit, being Title Suit/118/2016 which was for declaration and recovery of possession. The suit was decreed ex parte on 30.07.2019 and the plaintiff-decree holder had filed Execution Case/10/2019.

Since, there were certain anomalies in the identification of the suit land, the present petitioner had earlier approached this Court by filing CRP/13/2021. The said revision petition was, however, disposed of vide order dated 01.11.2021 on a consensus arrived at by the parties that before execution, the land in question would be identified first. Subsequent thereto, a report was called for by the concerned ASO whereafter such report was submitted by the concerned Lat Mondal on 22.11.2021. In the aforesaid report, however, it was stated that the suit land was not identifiable. The report was accordingly furnished to the learned Court and subsequently, vide an order dated 15.12.2021, the execution proceeding was dismissed as the suit land was not identifiable.

4. At that stage, the present respondent (plaintiff) had approached this Court by filing CRP(IO)/43/2022. The said revision petition was disposed of vide order dated 06.06.2022 wherein the present respondent was given liberty to cross- examine the Amin Commissioner and also to file objection. It appears that thereafter Misc. (J)/59/2022 was filed by the present respondent under Order XXVI Rule 10 (3). Thereafter, Misc. (J)/22/2023 was filed for review of the earlier order dated 15.12.2021. The application for review registered as Misc. (J)/22/2023 was allowed by the learned executing court on 16.02.2023. Thereafter, vide the impugned order dated 06.01.2024, Misc. (J)/59/2022 was also allowed whereby the respondent-decree holder was directed to take steps against the Amin Commissioner for cross-examination. It is the validity and legality of the aforesaid orders which are the subject matters of challenge in this proceeding.

5. I have heard Shri KK Dey, learned counsel for the petitioners whereas the respondent/opposite party no. 1 is represented by Mrs. R Choudhury, learned counsel.

6. The materials placed on record have been duly considered.

7. Shri Dey, learned counsel for the petitioners has submitted that unless the execution case was restored, the powers under Order XXVI Rule 10 (3) could not have been invoked. It is submitted that at no point of time, any Amin Commissioner was appointed and therefore, there was no occasion to call for such Amin Commissioner for cross-examination. It is also submitted that if at all there was a report, it is the report of the Mondal and such Mondal, if required to be examined, has to be done by calling him as a witness and not by the procedure adopted. The learned counsel, accordingly submits that the impugned orders are not sustainable in law and liable to be interfered with.

8. Per contra, Ms. Choudhury, learned counsel for the respondent/opposite party no. 1 has submitted that the instant petition is nothing but a procedure adopted to further delay the outcome of the execution proceeding. It is submitted that the title suit was instituted in the year 2016 in which, the present respondent had initially contested by filing written statement. However, after such filing, the petitioner, as defendant, stopped appearing. The petitioner had also failed to cross-examine the PWs and did not adduce any evidence in spite of opportunities. The petitioner, as defendant, also did not advance any arguments and ultimately, the suit was decreed on 30.07.2019. The learned counsel for the respondent/opposite party no. 1 has also clarified that though the petition under