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IN THE HIGH COURT OF GAUHATI, ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH
HON’BLE MR. JUSTICE PARTHIVJYOTI SAIKIA, J.
MD ISHAQUE S/O LATE ABDUL GANI – Petitioner
Versus
M/S ASHOK BIRI FACTORY – Respondent
CRP No. 119 of 2014
Decided On : 01-08-2024
EXECUTION - CIVIL DECREES - The court emphasized the importance of executing lawful decrees, stating that an executing court must endeavor to enforce the decree rather than frustrate it. The court found that the trial court had erred in dismissing the execution case, as the decree from T.S. 333 of 1997 remained valid and enforceable, and thus ordered the case to be remanded for proper execution.
Fact of the Case:
The petitioner, the absolute owner of a plot of land, filed a suit against the respondent for using his land as a road after part of his property was encroached upon and demolished. The trial court issued an ex parte decree in favor of the petitioner, which the respondent later sought to set aside unsuccessfully. The petitioner then sought civil imprisonment for the respondent for violating the decree.
Finding of the Court:
The trial court dismissed the execution case, stating the petitioner failed to prove the decree was violated. The petitioner admitted he had not seen the respondent using his land during his limited stays in Guwahati.
Issues: Whether the trial court erred in dismissing the execution case and failing to enforce the decree from T.S. 333 of 1997.
Ratio Decidendi: A decree of a civil court remains valid until set aside by a superior court. The executing court's primary duty is to execute the decree, and it should not frustrate a lawful decree.
Final Decision: The court set aside the trial court's order and remanded the execution case for expeditious disposal, allowing the use of police force if necessary to execute the decree.
JUDGMENT :
PARTHIVJYOTI SAIKIA, J.
1. Heard Mr. A. Deka, learned counsel representing the petitioner. None appeared for the respondent.
2. This 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.
3. The 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.
4. There 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.
5. In 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.
6. Therefore, the petitioner filed the suit being Title Suit No. 02/1988 in the court of Civil Judge (Jr. Divn.) No. 2 at Guwahati.
7. Be that as it may. Since a portion of the Assam Type House was demolished, a part of the land of the petitioner became vacant.
8. Adjacent 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.
9. Therefore, 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 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.
10. The 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.
11. Thereafter, 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.
12. The respondent also filed an application before the trial court for staying execution of the decree dated 27.09.2000. This application was also dismissed.
13. This 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 Rs. 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.
14. The 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.
15. The 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.
16. The 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.
17. Taking into consideration the aforesaid two facts, the trial court dismissed the entire execution case and also returned the amount of Rs. 10,000/-which was deposited by the respondent in the trial court pursuant to the order of this Court.
18. I have considered the submissions made by Mr. Deka.
19. A 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
The central legal point established in the judgment is the applicability of Order XXI Rule 29 of the CPC to the facts of the case and the emphasis on the lawful decree passed in favor of the responde....
The central legal point established in the judgment is the narrow power of the court under Section 47 of the Code of Civil Procedure, which limits objections to a decree only on the ground of it bein....
A court decree remains enforceable unless set aside, affirming ongoing jurisdiction for execution even post initial enforcement.
Decrees regarding immovable property must be upheld despite minor identification errors, allowing for amendments under CPC to ensure proper execution.
Point of Law : A person, including a stranger, could maintain a petition under Rule 97 of Order XXI and object and get adjudication when he sought to be dispossessed by the decree holder. The express....
Rule 35 of Order 21 deals with modes of executing a decree for possession of immovable properties.
Words “any person” is wide enough to include even a person not bound by a decree claiming right in the property on his own including that of a tenant not party to suit or even a stranger.
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