Gauhati High Court
Nabir Hussain And 5 Ors vs The State Of Assam And 2 Ors on 1 November, 2019
Author: Prasanta Kumar Deka
Bench: Prasanta Kumar Deka
Page No.# 1/4
GAHC010272392018
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : CRP 195/2018
1:NABIR HUSSAIN AND 5 ORS.
S/O- LATE KHALILUR RAHMAN, R/O- VILL- KATHALBARI, P.O AND P.S-
CHAPOR, DIST- DHUBRI, ASSAM
2: SURAT ALI
S/O- LATE HAZI BOKTAR ALI
R/O- VILL- KATHALBARI
P.O AND P.S- CHAPOR
DIST- DHUBRI
ASSAM
3: JAHIRUL HOQUE
S/O- LATE SAHAJUDDIN SK
R/O- VILL- KATHALBARI
P.O AND P.S- CHAPOR
DIST- DHUBRI
ASSAM
4: JELEKA KHATUN
D/O- MOHAMMAD ALI
R/O- VILL- KATHALBARI
P.O AND P.S- CHAPOR
DIST- DHUBRI
ASSAM
5: AINAL HOQUE
S/O- LATE GIASUDDIN
R/O- VILL- KATHALBARI
P.O AND P.S- CHAPOR
DIST- DHUBRI
ASSAM
Page No.# 2/4
6: MOZZAMEEL HOQUE
S/O- LATE ABDUL MAJID
R/O- VILL- KATHALBARI
P.O AND P.S- CHAPOR
DIST- DHUBRI
ASSA
VERSUS
1:THE STATE OF ASSAM AND 2 ORS
REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT OF ASSAM,
REVENUE (S) DEPTT, DISPUR, GUWAHATI- 06
2:THE DEPUTY COMMISSIONER
DHUBRI
P.O- DHUBRI-783301
DIST- DHUBRI
ASSAM
3:THE SETTLEMENT OFFICER
DHUBRI AND KOKRAJHAR
P.O- DHUBRI
DIST- DHUBRI
ASSAM
PIN- 78330
Advocate for the Petitioner : MR. N C BAROOAH
Advocate for the Respondent : GA, ASSAM
BEFORE
THE HON'BLE MR JUSTICE PRASANTA KUMAR DEKA
ORDER
01.11.2019 Heard Mr. N. C. Barooah, learned counsel for the petitioners. Also heard Mr. R. Borpujari, learned Standing Counsel for the Revenue Department, Assam and Mr. CKS Baruah, learned Government Advocate for the respondent Nos. 2 & 3.
Vide order dated 27.03.2018 passed in WP(C) No. 3310/2010 with a direction to the Page No.# 3/4 Executing Court i.e. learned Civil Judge, Dhubri in Title Execution No. 05/2009 as follows:-
"8. Considering the submissions of the learned counsels for the parties. On going through the records, more specifically, the records of Title Execution Case No. 5/2009, Title Execution Case No. 3/1990, Misc. (J) Case No. 18/2008 and Misc.(J) Case No. 2/2015, the dispute raised before this court under Article 226 of the Constitution of India is a dispute which is in seisin with the Executing court of learned Civil Judge, Dhubri. It is seen from the records that a precept was issued by the Executing court way back in the year 1990 as referred hereinabove and the said precept has not yet been complied with by the Land and Revenue officials and rather, it seems that further acts by the said officials complicated the matter giving rise to various other disputes which cannot be permitted under the law. Once a precept is issued by an Executing court it will have to be executed and if not, the reasons as to why the same cannot be executed must be intimated to the Executing court and not to other persons nor to other authority. It is seen that the respondent Settlement Officer has webbed his own net thereby going beyond the jurisdiction inasmuch as, if there is any difficulty on his part to execute the precept, he is supposed to inform the same to the Executing court. Moreover, from the submissions of both the learned counsels appearing on behalf of the parties to this writ petition, it is noticed that new facts are coming up. The petitioners are claiming their right on the basis of the lawfully obtained decree. On the other hand, the respondent No. 4 had filed the title suit which was dismissed for default and as on date, there is no stay order of the execution of the said decree passed in Title Suit No. 58/1984 and as such, the Executing court shall take up this matter by giving due notice to the parties to the present writ petition and thereafter directing the issue whether the Title Execution Case No. 3/1990 can be further proceeded owing to various orders passed as seen from the records after hearing the parties to the present writ petition and to see that the decree may be executed.
9. From the record it is not found that the settlement officer has/had made any response to the precept received on 11.04.1990 which clearly shows that the said Execution proceeding is still continuing as on date. Subsequent reference by the Settlement Officer awaiting clarification from the Government who was a party to the suit is immaterial. Government in such a situation cannot sit as a reviewing authority when the decree was passed in its presence. Decree which is passed is to be executed without waiting for any further instruction as sought for by the Settlement Officer and the precept of the Executing court has the untrammelled force which cannot be resisted by the Government once the said decree is passed in its presence. Accordingly, this writ petition is disposed of with the aforesaid direction."
The petitioners are aggrieved by the order dated 10.09.2018 passed in Title Execution No. 05/2009 in pursuance of the direction by this court in the said writ petition. On perusal of the said impugned order, it is found as follows:-
Page No.# 4/4 "Perused C/R. It appears that T.Ex.5/2009 was dismissed vide order dtd. 04/10/16. T.Ex.3/90 was ordered to be registered as Misc.(J) Case No. 20/09 vide order dtd. 12/06/09. So from 12/06/09 the T.Ex.No.3/90 was renumbered/registered as Misc.(J) Case No. 20/09 as same was filed alleging violation of decree passed in TS No.58/84. This Misc.(J) Case No. 20/09 was dismissed for non- prosecution vide order dtd.22/12/09 as the petitioners' side has declined to proceed with the case. So, both execution cases i.e. T.Ex.3/90 and 5/09 have been disposed of. So, these cases are no more existing for doing anything. As T.Ex.3/90 and 5/09 are already disposed of long back, hence this Court has nothing to do. Keep the order of the Hon'ble Gauhati High Court in the C/R."
In my considered opinion, the learned court below ought to have entered into the execution proceeding and brought to its logical conclusion the said execution proceedings keeping in view that a precept had long back was issued in Title Execution Case No. 5/09 to the Government for satisfaction of the decree. Accordingly, the petitioners are given the liberty to file Review Petition for reviewing order dated 10.09.2018 along with necessary delay condonation application.
With the said observations and the liberty granted to the petitioners, this revision petition stands disposed of. The review petition if so filed shall be disposed of at the earliest but not beyond the outer limit of 4(four) months after hearing the necessary parties to the proceeding from the date of filing of the review petition.
JUDGE Comparing Assistant