ORDER

Date : 01-08-2018 Heard Mr. Sheeladitya, learned counsel for the petitioner.

By this application under Article 227 of the Constitution of India, the petitioner has challenged the order dated 11.07.2018 passed by the learned Munsiff, Hojai, Sankardev Nagar in Misc(J) Case No.32/2018 in Title Execution Case No.7/2015.

The learned counsel for the petitioner submits by referring to the report of the Civil, Nazir dated

25.06.2018 that with the help of police and lat mandal, the Civil Nazir had identified the decreetal land on which execution was to be carried out. It is submitted that the decree dated 30.09.2013 passed in T.S. No.81/2012(New) was put to execution and the decree was partly executed on 25.06.2018. However, because of paucity of time, the execution could not be completed. Thereafter, the respondents, who are judgment debtor had filed an application before the Court of Munsiff, Hojai under Section 47 read with order 21 Rule 58 read with Section 151 CPC, which was registered as Misc(J) Case No.32/2018.

On hearing the learned counsel for the parties, the learned Executing Court, by the impugned order had stayed the execution, which is in challenge in the present application.

The learned counsel for the petitioner submits that in the impugned order, the learned Executing Court had directed the Civil Nazir to submit the report giving a detailed description of the land, which was already on record by virtue of the report of Civil Nazir dated 25.06.2018. It is further submitted that the provision of Order 21 Rule 58 CPC was not applicable in the facts and circumstance of the present case.

In this context, it is submitted that the learned Executing Court, without considering the materials on record committed jurisdictional error by staying the execution. There is no provision in an application under Order 21 Rule 58 CPC for staying the execution.

On perusal of the materials on record, this Court is of the opinion that as the issues raised by the respondents having not been decided by the learned Executing Court, at this stage if any notice is issued, it will further delay the execution proceeding. Therefore, at this preliminary stage, this Court is not inclined to admit this application.

However, liberty is granted to the petitioner to file objection to the said Misc(J) Case No.32/2018 and on such objection being filed, it is provided that the learned Munsiff, Hojai shall expeditiously hear the matter keeping in mind that the decree has been partly executed on 25.06.2018.

With the aforesaid observation, this petition stands closed.

JUDGE Comparing Assistant