Gauhati High Court
Page No.# 1/16 vs Tata Tea Ltd on 29 April, 2025
Author: Devashis Baruah
Bench: Devashis Baruah
Page No.# 1/16
GAHC010042622025
2025:GAU-AS:5185
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : CRP/26/2025
ON THE DEATH OF HARI PRASAD DOWERAH HIS LEGAL HEIRS NAMELY
SRI AMRIT DOWERAH
S/O LATE HARI PRASAD DOWERAH R/O LONGJONG, GAON, P.O and P.S
NAHARKATIA, DIST DIBRUGARH, ASSAM.
VERSUS
TATA TEA LTD
REGISTERED OFFICE AT BISPOPLOFRAY ROAD KOLKATA, WEST BENGAL,
PIN 700020.
2:THE AMALGAMATED TEA COMPANY ESTATE COMPANY
A LIMITED LIABILITY COMPANY INCORPORATED IN ENGLAND AND ITS
PRINCIPAL OFFICE IN KOLKATA CARRYING ON BUSINESS OF TEA
PLANTATION AND MANUFACTURE IN INDIA AND OWNING AMONGST
OTHERS NAHARKATIA TEA ESTATE
P.O- NAHARKATIA
DIST- DIBRUGARH
ASSAM
PIN-786610
3:TEA FIN LAY LIMITED
A COMPANY INCORPORATED IN INDIA AND ITS REGD OFFICE AT
BOMBAY HOUSE
34 HOMY REDY STREET
FORT
BOMBAY-400023
CARRYING ON TEA PLANTATION AND MANUFACTURE AND OWNING
AMONGST OTHERS NAHARKATIA TEA ESTATE
P.O- NAHARKATIA
DIST- DIBRUGARH
Page No.# 2/16
ASSAM
PIN-78661
BEFORE
HON'BLE MR. JUSTICE DEVASHIS BARUAH
Advocates for the petitioner(s) : Mr. S Sahu
Advocates for the respondent(s) : Mr. NC Das, Senior Advocate
Ms. M Devi Date of hearing & judgment : 29.04.2025 JUDGMENT & ORDER(ORAL) Heard Mr. S Sahu, the learned counsel appearing on behalf of the petitioner. Mr. NC Das, the learned senior counsel assisted by Ms. M Devi, the learned counsel appears on behalf of the respondents.
2. The petitioner has approached this Court by invoking the revisional jurisdiction of this Court under Section 115 of the Code of Civil Procedure, 1908 (for short, 'the Code') challenging the order dated 12.12.2024 passed in Title Execution Case No.05/2019 by the Court of the learned Civil Judge (Junior Division), Naharkatia, Dibrugarh (hereinafter referred to as, 'the learned Executing Court').
3. For the purpose of deciding, as to whether, this Court should exercise its revisional jurisdiction in respect to the impugned order dated 12.12.2024, it is relevant to take note of the brief facts which led to the filing of the instant proceedings.
4. The respondent No. 2 herein had filed a suit being Title Suit No. 23/1975 Page No.# 3/16 against the grandfather of the petitioner, who was one Tankeshwar Dowerah (since deceased). The case of the respondent No. 2 in the said suit was that the respondent No. 2 was the owner of the quarter situated at Old Staff Line at Naharkatia Tea Estate which was given to Late Tankeshwar Dowerah as an incidence of his service. Subsequent to his retirement, late Tankeshwar Dowerah did not vacate the suit premises for which a notice was issued on 06.03.1974 asking him to quit, vacate, deliver vacant possession of the quarter on the expiry of 31.03.1974. Late Tankeshwar Dowerah, however, did not vacate the quarter and it is under such circumstances the suit was filed being Title Suit No.73/1975 for recovery of khas possession of the suit premises by evicting the defendant and his dependents therefrom and for costs of the suit. The said suit thereupon was decreed in favour of the respondent No. 2 by the learned Trial Court vide the judgment and decree dated 19.08.1994. It is very pertinent to mention that during the pendency of the suit, Late Tankeshwar Dowerah expired and he was substituted by his wife namely, one Maichana Dowerah (Who had also expired in the meantime).
5. Being aggrieved by the judgment and decree dated 19.08.1994 passed in Title Suit No. 23/1975 the said Late Maichana Dowerah, who was the grandmother of the petitioner preferred an appeal before the learned First Appellate Court which was registered and numbered as Title Appeal No. 15/1994. The said appeal was dismissed vide the judgment and decree dated 31.05.1995.
6. Being aggrieved, a second appeal was preferred by Late Maichana Dowerah before this Court which was registered and numbered as RSA No.128/1995 and the same was also dismissed on 31.10.2000.
7. Upon the dismissal of the said Second Appeal, an execution application Page No.# 4/16 was filed on 16.06.2011 which was registered and numbered as Title Execution Case No.11/2011. It is relevant to take note of that after the filing of the said execution application in the year 2011, the petitioner filed a suit in the year 2012, which was registered as Title Suit No. 49/2012 seeking a declaration that the decree obtained by the respondents herein was null and void, illegal, inoperative and unexecutable due to fraud and misrepresentation and the respondents herein had no right, title and interest to execute the said decree; a declaration that the petitioner herein as well as his dependents and person under him is not liable to be evicted from the suit premises described in the decree as well as also for perpetual injunction. In the said suit, the petitioner herein as plaintiff sought for a stay of the execution proceedings being Title Execution Case No.11/2011. The said suit subsequently was renumbered as Title Suit No. 4/2022 and transferred to the Court of the learned Munsiff, Naharkatia in view of the amendment made to the Bengal, Agra and Assam Civil Courts Act, 1887, whereby the pecuniary jurisdiction of the Courts were enhanced.
8. It is further relevant to take note of that in the Execution Proceedings, the petitioner had also filed an application under Order XXI Rule 29 of the Code for stay of the Execution Proceedings in view of pendency of Title Suit No.04/2022. This application under Order XXI Rule 29 of the Code filed by the petitioner before the learned Executing Court was dismissed by the learned Executing Court vide an order dated 28.05.2022.
9. Being aggrieved, the order dated 28.05.2022 passed by the learned Executing Court was challenged before this Court by invoking the supervisory jurisdiction of this Court which was registered and numbered as CRP(IO)No.270/2022. This Court vide a detailed judgment and order dated Page No.# 5/16 26.04.2024 dismissed the said application filed under Article 227 of the Constitution thereby affirming the judgment passed by the learned Executing Court of rejection of the application under Order XXI Rule 29 of the Code. It is very pertinent at this stage to take note of some of the observations made by this Court, while disposing of the said application being CRP(IO)No.270/2022. Paragraph Nos. 9 10 and 11 of the said judgment being relevant are reproduced hereinunder:
"9. From the materials available on record, it is apparent that a lawful decree was passed by the Courts against the grandfather and the grandmother of the petitioners herein in respect to the suit premises, which was a quarter situated at Old Staff Line at Naharkatia Tea Estate. Though it has been submitted by the learned senior counsel appearing on behalf of the petitioners that the petitioners claimed their independent right on the basis of the Rioti Khatian issued in favour of their father, this Court is of the opinion that issuance of a Khatian would only be a Khatian in respect to the land and not in respect to the Schedule premises of the suit. Moreover, the said Khatian was issued during the pendency of the suit and, as such, any devolvement of the right(s) during pendency of the suit would be only subject to the outcome of the further proceedings of the said suit, which, in the present case, was decreed in favour of the respondents herein.
10. This Court also finds it relevant to take note of the fact that the Executing Court was completely justified in coming to the finding that the provisions of Order XXI Rule 29 of the CPC would not be applicable to the facts of the case taking into account that the suit, which was filed by the petitioners, was subsequent to filing of the Execution Application and, as such, the said provisions would not be applicable.
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11. In view of the facts and circumstances noted above, it is the opinion of this Court that the impugned order dated 25.08.2022 does not call for any interference inasmuch as there is a lawful decree which has been passed in favour of the decree holders/respondents herein. Moreover, it is seen that the suit was filed in the year 1975 and as on date almost 49 years have passed by and the decree holders are yet to enjoy the fruits of the said decree."
10. Mr. NC Das, the learned Senior counsel appearing on behalf of the respondent further drew the attention of this Court that Title Suit No.4/2022 had also in the meanwhile been dismissed by the learned Trial Court vide the judgment and decree dated 21.09.2024 and an appeal there against was filed which is registered and numbered as Title Appeal No.47/2024 and pending before the Court of the learned Civil Judge (Senior Division) Dibrugarh.
11. It is further relevant to take note of that pursuant to the dismissal of the application filed before this Court being CRP(IO)No.270/2022, the learned Executing Court passed an order dated 27.05.2024 in Title Execution Case No.5/2019 directing issuance of a writ after proper verification, thereby fixing 15.06.2024 for taking steps.
12. On 15.06.2024, the petitioner filed a petition being Petition No.298/2024 and the learned Executing Court fixed 01.08.2024 for hearing of the said petition and passing of necessary order(s). This Court finds it very relevant to take note of the said petition being Petition No.298/2024, wherein the petitioner sought review of the order dated 27.05.2024 on the grounds that the judgment debtor No.2, one Bhabani Prasad Dowerah was served with a notice and secondly, that the preliminary objection dated 16.12.2012 and the final objection dated 13.05.2022 are yet to be heard and disposed of before Page No.# 7/16 proceeding with the execution of case.
13. The learned Executing Court vide the order dated 01.08.2024 dismissed the said application which was registered and numbered as Petition No.298/2024 vide a detailed order and holding inter alia that against the said order the review jurisdiction could not have been exercised. The learned Executing Court further having taken into account the Petition No.430/2024 filed by the decree holder fixed the said petition for hearing on 22.08.2024.
14. The petitioner approached this Court by filing another application by invoking the supervisory jurisdiction of this Court under Article 227 of the Constitution which was registered and numbered as CRP(IO)No.435/2024. By the said application, the petitioner challenged the order dated 01.08.2024 on the ground that the preliminary objection raised on 16.10.2012 and the final objection filed on 13.05.2012 was yet to be disposed of and without disposing of the said petitions, the learned Executing Court had proceeded with the execution.
15. This Court vide the order dated 04.11.2024 in CRP(IO)No.435/2024 did not interfere with the order dated 01.08.2024, but rather disposed of the said application under Article 227 of the Constitution by directing the learned Executing Court to hear and dispose of the preliminary objection as well as the final objection before issuance of the writ in the said execution proceedings. It is under such circumstances, the impugned order dated 12.12.2024 was passed by the learned Executing Court whereby the preliminary and final objections so raised by the petitioner as judgment debter were rejected, fixing 16.01.2025 for taking steps and it is under such circumstances, the present revision application has been filed.
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16. Mr. S Sahu, the learned counsel appearing on behalf of the petitioner submitted that the learned Executing Court failed to take note of the objections so raised by the petitioner before the learned Executing Court. He submitted that the objection raised to the executability of the decree were as follows:
(a). The execution case was filed on 16.06.2011 which was barred by limitation under Article 136 of the Limitation Act, 1963;
(b). The decree holders had earlier filed the Title Execution Case No. 16/2008 which was dismissed for default on 30.04.2009 and the decree holder, instead of getting the said Title Execution Case No.16/2008 revived filed the present execution application which was registered and numbered as Title Execution Case No. 5/2019;
(c). The suit premises was not properly described and as such, the execution proceedings was not maintainable.
(d). It was further mentioned that the total area measuring 1 Bigha 1 Katha 10 Lechas i.e. 18,720 sq.ft. of Dag No.4 and covered by Periodic Patta No. 1. There were more than one quarter since the time of the fore-
fathers of the petitioners and have been let out to different tenants on rent and in respect of which the Deputy Commissioner, Dibrugarh had issued a rayoti patta in favour of the judgment debtor Late Hari Prasad Dowerah.
(e). The decree so passed was null and void taking into account that all the legal representatives of Late Tankeshwar Dowerah were not made parties to the said suit.
17. The learned counsel, therefore, submitted that these objections were not taken into account by the learned Executing Court in the proper perspective and, as such, it is a fit case wherein the entire execution proceeding is required to be rendered non est and the impugned order dated 12.12.2024 is required to Page No.# 9/16 be interfered with. The learned counsel submitted that in view of the rayoti khatian being issued in favour of the father of the petitioner by the Deputy Commissioner, Dibrugarh in respect to the land, the execution proceedings is barred under Section 66 of the Assam (Temporarily Settled Areas) Tenancy Act, 1971 (for short, 'the Act of 1971').
18. Per contra, Mr. NC Das the learned senior counsel appearing on behalf of the respondents submitted that the filing of the instant case and the objection so raised before the learned Executing Court are nothing but attempts made by the judgment debtor to delay the fruits of the decree to the plaintiff/the decree holders. The learned Senior Counsel submitted that the decree so passed by the learned Trial Court have been upheld by this Court as far back as in the year 2000 itself and till date even after a passage of 25 years, the decree holders are not in a position to enjoy the fruits of the decree on account of unnecessary objections being raised by the judgment debtor. He, therefore, submitted that this is a fit case where exemplary cost should be imposed and the cost should commensurate with the deprivation of the decree holders of the use and occupation of the suit premises even after the decree was confirmed by this Court.
19. Having heard the learned counsels appearing on behalf of the parties, let this Court first take up each of the objections so raised by the learned counsel appearing on behalf of the petitioner as regards the execution proceedings and the impugned order dated 12.12.2024.
20. The first objection so taken pertains to that the execution proceedings being barred under Article 136 of the Limitation Act, 1963.
21. This Court has duly perused Article 136 of the Limitation Act, 1963 which Page No.# 10/16 stipulates that the period of limitation is 12 years when the decree or order becomes enforceable. In the instant case, it would be seen that the learned Trial Court decreed the suit vide the judgment and decree dated 19.08.1994. The said decree passed by the learned Trial Court was affirmed on merits by the learned First Appellate Court in Title Appeal No. 15/1994 whereby the said appeal was dismissed on 31.05.1995. The said judgment and decree passed by the learned First Appellate Court dated 31.05.1995 was further confirmed on merits by this Court vide the judgment and decree dated 31.10.2000 in RSA No.128/1995. Applying the doctrine of merger, the period of limitation in terms with Article 136 is required to be taken with effect from 31.10.2000. In the instant case, it would be seen that the second execution application was filed in the year 2011. Under such circumstances, the said application seeking execution was filed within the period of limitation.
22. Let this Court now take up the second objection so taken as regards that the first execution application, which was registered as Title Execution Case No.16/2008 having been dismissed for default on 30.04.2009 and the subsequent execution application could not have been filed. The said objection in the opinion of this Court is totally misconceived inasmuch as, it is well settled that the provisions of Order IX of the Code is not applicable to proceedings under Order XXI of the Code. Considering the above, the provisions of Order IX Rule 9 of the Code would not come into play. It is also well settled that there is no bar to filing fresh execution applications, but within the period of limitation. As already opined above, the second execution application was filed within the period of limitation. Accordingly, the second objection so taken is misconceived for which the same was rightly rejected by the learned Executing Court.
23. The third objection that has been taken is as regards the wrong Page No.# 11/16 description of the suit premises. The said objection raised reminds this Court of the judgment of the Supreme Court in the case of Ravinder Kaur Vs. Ashok Kumar & Another, reported in (2003) 8 SCC 289 wherein the Supreme Court categorically observed that raising a dispute in regard to description or identity of the suit schedule property or a dispute in regard to the boundary of the schedule suit property at the execution stage is only a bogey to delay the eviction by abuse of the process of the Court. It was observed that Courts of law should be careful enough to see through such diabolical plans of the judgment debtor(s) to deny the decree holders the fruits of the decree obtained by them. It was also observed that the Court should act with a firm hand in dealing with such type of objections.
24. This Court enquired as to whether such objections were raised during the proceedings of the suit. The learned counsel submitted that he is not aware of it. In the opinion of this Court, such objection so raised at this stage amounts to an abuse of the process of the Court. Paragraph No. 22 of the said judgment being relevant is reproduced herein under.
"22. All these facts apart, we notice that nowhere in the petition the respondent tenants claim to be in possession of any shop other than Shop No. 3 in regard to which they have suffered an eviction order. It is not their case that they are also in possession of some other property in regard to which there is no eviction order but the landlord is trying to take possession in these execution proceedings. We have specifically asked the learned counsel appearing for the respondents that apart from Shop No. 3 belonging to the appellant, are the respondents in possession of any part of the property bearing No. EK 172/2 situated at Chowk Panjeer, Jalandhar. The learned counsel was not able to give any satisfactory reply to our Page No.# 12/16 question which would only mean that the respondents are not in possession of any other property other than Shop No. 3 leased out to them in the abovementioned property belonging to the appellant. That is also why they prayed for restoration of possession. Therefore, raising a dispute in regard to the description or identity of the suit schedule property or a dispute in regard to the boundary of the suit schedule property is only a bogey to delay the eviction by the abuse of the process of court. Courts of law should be careful enough to see through such diabolical plans of the judgment-debtors to deny the decree-holders the fruits of the decree obtained by them. These type of errors on the part of the judicial forums only encourage frivolous and cantankerous litigations causing law's delay and bringing bad name to the judicial system."
25. In that view of the matter, the third objection so raised is totally misconceived.
26. The fourth objection raised is as regards the fact that the Deputy Commissioner, Dibrugarh had issued a rayoti patta in favour of the father of the petitioner and it is under such circumstances, the execution proceedings should not be allowed to continue.
27. This Court in the previous segments of the instant judgment had quoted Paragraph No. 9 of the judgment dated 26.04.2024 passed in CRP(IO) No.270/2022 wherein this Court had categorically observed that the issuance of a Khatian would only be a Khatian in respect to the land and not in respect to the schedule premises of the suit. It was also observed that the Khatian was issued during the pendency of the suit and as such, any devolvement of rights during the pendency of the suit could be only subject to the outcome of the further proceedings of the suit. These observations so made by this Court have Page No.# 13/16 not been assailed in any further proceedings and as such, the said observations act as a bar on the part of the petitioner to raise such objections.
28. Additionally, this Court further finds it relevant to take note of that the perusal of the plaint would categorically show that the recovery of khas possession was sought for in respect to a suit premises which was a quarter allotted to the grandfather of the plaintiff as an incidence of service. The said quarter had categorically been described in the schedule to the plaint.
29. This Court further finds it relevant to take note of at this stage the judgment of the Supreme Court in the case of Pratibha Singh & Another Vs. Shanti Devi Prasad & Another reported in (2003) 2 SCC 330, wherein the Supreme Court categorically mentions at paragraph No. 17 that when a suit for immovable property is decreed and the property is not definitely identified, the defect in the Court record caused by overlooking the provisions of Order VII Rule 3 and Order XX Rule 3 of the Code is capable of being cured. It was categorically observed that after all a successful plaintiff should not be deprived of the fruits of the decree. It was also observed that the learned Executing Court can exercise its powers under Section 47 of the Code, if necessary to ascertain the exact description of the decreetal property. Paragraph No.17 of the said judgment is reproduced hereinunder:
"17. When the suit as to immovable property has been decreed and the property is not definitely identified, the defect in the court record caused by overlooking of provisions contained in Order 7 Rule 3 and Order 20 Rule 3 CPC is capable of being cured. After all a successful plaintiff should not be deprived of the fruits of decree. Resort can be had to Section 152 or Section 47 CPC depending on the facts and circumstances of each case -- which of the two provisions would be more appropriate, just and Page No.# 14/16 convenient to invoke. Being an inadvertent error, not affecting the merits of the case, it may be corrected under Section 152 CPC by the court which passed the decree by supplying the omission. Alternatively, the exact description of decretal property may be ascertained by the executing court as a question relating to execution, discharge or satisfaction of decree within the meaning of Section 47 CPC. A decree of a competent court should not, as far as practicable, be allowed to be defeated on account of an accidental slip or omission. In the facts and circumstances of the present case, we think it would be more appropriate to invoke Section 47 CPC."
30. This Court further finds it very pertinent to take note of that though in the objection, there is a mention that the Deputy Commissioner, Dibrugarh had issued a rayoti khatian patta in favour of the father of the petitioner, but neither the date on which such rayoti khatian was issued nor the number of the said rayoti khatian had been stated in the pleadings.
31. There is also nothing on record to show that there is any issuance of rayoti khatian in favor of the father of the petitioner. Under such circumstances, the said objections so taken is totally misconceived, untenable and appear to be just a bogey to delay the fruits of the decree to the decree holder.
32. The last objection so taken pertains to that in the suit all the legal representatives of Late Tankeswar Dowerah were not made a party and as such, the said decree could not be applicable insofar as, the other heirs / legal representatives of Late Tankeswar Dowerah.
33. This Court takes note of that this very issue was raised in Second Appeal No. 128/1995 as a substantial question of law and this Court in its judgment dated 31.10.2000 had rejected the said contention and this very aspect is Page No.# 15/16 apparent from a perusal of the impugned order dated 12.12.2024 wherein the learned Executing Court had referred to.
34. This Court further had duly taken note of the impugned order dated 12.12.2024, whereby the learned Executing Court meticulously have taken into account each and every objection so raised by the petitioner and upon applying the law properly had rejected the objections so raised and proceeded with the execution proceedings. Consequently, it is the opinion of this Court that there is neither any error in exercise of jurisdiction by the learned Executing Court nor the impugned order dated 12.12.2024 suffers from any illegality or material irregularity in exercise of the jurisdiction.
35. Consequently this Court finds no merit in the instant revision petition, for which, the instant proceedings stands dismissed.
36. This Court has further taken note of that by means of Litigative Acrobatics, the petitioner for the last two decades had denied the fruits of the decree in favour of the Decree Holders/Respondents herein. The objections so raised are totally misconceived. Additionally, the objections so raised are with an intention to delay the execution proceedings. In this process, not only the decree holders have been deprived, but precious judicial time had been lost which could have been devoted to other deserving litigants. Based on the Census 2011 data, as was informed by the Minister of State (Independent Charge) for Law and Justice on 09.12.2024, the Judge-Population ratio is approximately 21 Judges per 10 lakhs population. Under such circumstances, it is the opinion of this Court that if certain exemplary costs are not imposed in litigations of the present type, it would send a wrong signal.
37. Considering the above, this Court imposes a costs of Rs.25,000/- upon the Page No.# 16/16 petitioner herein which the petitioner would deposit before the learned Executing Court on the next date as fixed hereinafter.
38. The interim order dated 10.03.2025 passed in the present proceedings is vacated and the petitioner and the respondents are directed to appear before the learned Executing Court on 16.05.2025 for further proceedings in the Execution Application.
JUDGE Comparing Assistant