Gauhati High Court
Page No.# 1/3 vs Deepa Newar on 18 November, 2020
Author: Prasanta Kumar Deka
Bench: Prasanta Kumar Deka
Page No.# 1/3
GAHC010196902019
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : CRP/112/2019
DEEPAK BORTHAKUR AND ANR.
S/O- LT BIRENDRA NATH SARMA BORTHAKUR, R/O- JAKHALABANDHA
TOWN, MOUZA- CHATIAL, P.S. JAKHALABANDHA, DIST- NAGAON,
ASSAM, PIN- 782136
2: BINA BORTHAKUR
W/O- LT BIRENDRA NATH SARMA BORTHAKUR
R/O- JAKHALABANDHA TOWN
MOUZA- CHATIAL
P.S. JAKHALABANDHA
DIST- NAGAON
ASSAM
PIN- 78213
VERSUS
DEEPA NEWAR
S/O- LT SHER BAHADUR NEWAR, R/O- JAKHALABANDHA TOWN, MOUZA-
CHATIAL, P.O. AND P.S. JAKHALABANDHA, DIST- NAGAON, ASSAM, PIN-
782136
Advocate for the Petitioner : MR. A J SARMA
Advocate for the Respondent : MR K K MAHANTA
BEFORE
THE HON'BLE MR JUSTICE PRASANTA KUMAR DEKA
ORDER
Page No.# 2/3 18.11.2020 Heard Mr. SK Ghosh, learned counsel for the petitioners. Also heard Mr. K M Mahanta, learned counsel for the respondent.
The present petitioners were the landlords of the respondent. A suit for ejectment i.e. T.S. 15 (K)/2012 was filed by the petitioners against the respondent which was decreed. As per the decree, the respondent was to be evicted from the tenanted premises mentioned in the schedule of the plaint by removing the belongings of the respondent and deliver khas possession of the same to the petitioners. Further, it was decreed that the petitioners were entitled for recovery of arrear rents of Rs. 67,500/- being the monthly rent @ 7,500/- from December, 2011 to August, 2012. Though the petitioners sought for a decree for arrear rent lis-penency, the same was not granted. The respondent filed an appeal challenging the judgment and decree passed by the learned trial court which was also dismissed vide judgment dated 12.06.2015 passed in T.A. 34/2014 by the learned Civil Judge, Nagaon. Thereafter, the respondent filed RSA 145/2017 which was dismissed on withdrawal subject to certain conditions assured by the petitioners as the respondents in the said second appeal. Amongst the various terms and conditions, the petitioners gave an assurance that they would not execute the decree for the next 9 months from 11.08.2017 i.e. the date of withdrawal of the second appeal. During the extended period of 9 months, the respondent shall pay Rs. 5,000/- as the monthly rent to the petitioners. The said arrangement was purely a temporary arrangement without affecting the right of the present petitioners to carry out execution in the event of violation of any of the terms as agreed by the respondent on 11.08.2017. Thereafter, the petitioner again preferred IA (Civil) 1633/2018 seeking for extension of the period of 9 months for continuing the possession in respect of the tenanted premises. Vide order dated 23.05.2018, the said IA (Civil) 1633/2018 was disposed of by extending another 3 months period from 11.05.2018 on the condition that the respondent shall vacate the premises on his own volition. The respondent thereafter filed Review Petition 145/2018 which was dismissed vide order dated 29.04.2019. After the dismissal of the Review Petition the decree was put to execution and ejectment was carried out in pursuance to the execution proceeding on 20.05.2019. However, it was informed to the executing court by the respondent that due to financial hardship he was unable to deposit the house rent and other Page No.# 3/3 expenses before the executing court. On 20.06.2019, the present petitioners as the decree holders filed a petition under Section 151 of the CPC read with Section 152 of the CPC seeking for an order for recovery of Rs. 7,25,016/- as the arrear rent as well as decreetal rent from the respondent judgment debtor. This petition was disposed of vide order dated 20.06.2019 holding that the same is not maintainable as the amount is not covered by the decree which is under challenge in this revision petition. The issue before this court is as to whether on the basis of the factual matrix referred hereinabove, the executing court has the power to grant the relief sought for by the petitioners or though the amount is recoverable, the same has to be recovered by filing separate suit.
Let, this matter be again listed for Admission on 08.12.2020.
JUDGE Comparing Assistant