On the Death of Biswajit Sukul, His Legal Heirs Kusum Sukul and 11 Ors v. Sakuntala Sarda and 25 Ors

ORDER

28.10.2024 Heard Mr. S.D. Purkayastha, learned counsel for the petitioners.

¶2By this petition under Article 227 of the Constitution of India, the petitioners have put to challenge the correctness or otherwise of the order dated 20.09.2024 passed by the learned Civil Judge (Junior Division) No.2, Cachar, Silchar, in Misc.(J) Case No.138/2024, arising out of Title Execution Case No.55/2023.

¶3It is to be noted there that vide impugned order dated 20.09.2024, the learned Civil Judge (Junior Division) No.2, Cachar, Silchar, has directed to issue notice to the absentee defendants and also kept the Title Execution Case No.55/2023 in abeyance, till Page No.# 9/11 disposal of Misc.(J) Case No.138/2024.

¶4Mr. Purkayastha, learned counsel for the petitioners submits that the petitioners are decree-holders in Title Execution Case No.55/2023, arising out of the Title Suit No.189/1977. Mr. Purkayastha, further submits that after getting the decree in Title Suit No.189/1977, the petitioners had instituted one Title Execution Case No.55/2023, on

03.08.2023, and during the pendency of the said execution case, the respondents herein have filed a petition under Section 47, read with Section 151 CPC, upon which, the learned Executing Court has registered a Misc.(J) Case No.138/2024. In the said Misc.(J) case, the present petitioners have filed an objection, but the learned Executing Court vide impugned order dated 20.09.2024, has directed to issue notice to the absentee defendants and also kept the Title Execution Case No.55/2023 in abeyance.

¶5Mr. Purkayastha, learned counsel for the petitioners further submits that the issues raised in the petition under Section 47, read with Section 151 CPC, has already been adjudicated by Hon'ble Supreme Court and as such, there is nothing to be adjudicated in the said petition which is filed only to delay the execution of the decree and the said petition ought to have been dismissed by the learned Executing Court. But instead of doing so, the learned Trial Court has directed to issue notice to the absentee defendants, who are the decree-holders and who were all along represented by the engaged counsel and thereby cause delay in disposal of the execution case and, as such, the impugned order so passed by the learned Executing Court is illegal and arbitrary and therefore, it is contended to be set it aside.

¶6Having heard the submission of Mr. Purkayastha, learned counsel for the petitioners, I have carefully gone through the petition and the documents placed on record and also perused the impugned order dated 20.09.2024, and also gone through the Petition No.927/2024 under Section 47, read with Section 151 CPC and the objection petition filed by the present petitioners dated 31.08.2024. Page No.# 10/11

¶7It appears that the title suit was instituted in the year 1977 and since then several years elapsed and ultimately the same was decreed on 31.03.2022, by the Appellate Court.

¶8Further, it appears that against the said judgment and decree dated 31.03.2022, one revision petition being CRP No.67/2022 was preferred before this Court and the same was dismissed by this Court vide judgment and order dated 23.05.2023 and thereafter, the respondents herein have preferred one SLP before the Hon'ble Supreme Court, being Special Leave to Appeal (C) No.27393/2023 and the same has been dismissed vide order dated 19.07.2024. That being the position, the judgment and decree dated 31.03.2022 has attained finality and thereafter, the petitioners herein have instituted the execution proceeding, being Title Execution Case No.55/2023. In the said execution proceeding the respondents herein being the judgment-debtors have filed on petition under Section 47, read with Section 151 of the CPC and the present petitioners have filed their objection.

¶9Further, it appears that the petitioners herein are decree-holders and they were represented by their counsel before the learned Executing Court and that being the position, there was no requirement of issuance of notice to them. The matter has already been delayed by several years. In that view of the matter, this Court is of the view that the impugned order dated 28.09.2024, fails to withstand the legal scrutiny and therefore, the same stands set aside and quashed.

¶10It is provided that the learned Executing Court shall proceed to hear and dispose of the Misc.(J) Case No.138/2024 in Title Execution Case No.55/2023, in accordance with law, as soon as practicable.

¶11The learned counsel for the petitioners, however, submits that a direction may be issued to the learned Trial Court to dispose of the petition under Section 47 read with Section 151 of the CPC, within a period of 2(two) months from today. Page No.# 11/11

¶12I have find substance in the submission of Mr. Purkayastha, learned counsel for the petitioners.

¶13Accordingly, it is provided that the learned Executing Court shall make an endeavour to dispose of the petition under Section 47 read with Section 151 of the CPC within a period of 2(two) months from the date of receipt of a certified copy of this order. The petitioners shall obtain a certified copy of this order and place the same before the learned Executing Court.

¶14In terms of above, the civil revision petition stands disposed of at the motion stage itself. Comparing Assistant Sd/- Robin Phukan JUDGE

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