Allowed

Tilen Kr Nath v. on the Death of Hari Kanta Pator His Legal Heirs Smti Ganga Devi Khataniar and 2 Ors.

Gauhati HC9 Jun 2020CRP/274/2015

Case brief

AI extract

What is this about?

The revision petition was allowed. The High Court drew a presumption of service for a respondent residing in the same household as others who received notice. The impugned order rejecting a request for time to issue a writ in execution was set aside.

What did the court decide?

The impugned order dated 12.03.2015 is set aside. The petitioner is directed to appear within four weeks and produce a certified copy of this order.

Tilen Kr Nath Vs on the Death of Hari Kanta Pator… — Execution and Attachment | Gauhati HC (2020)

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Page No.# 1/3

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GAHC010118342015

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THE GAUHATI HIGH COURT

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(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

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Case No. : CRP 274/2015

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1:TILEN KR NATH

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S/O SRI DAMBARUADHAR NATH, VILL. BASANAGHAT, P.O. MANIKPUR, P.S. and MOUZA- and DIST- MORIGAON, ASSAM

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VERSUS

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1:ON THE DEATH OF HARI KANTA PATOR HIS LEGAL HEIRS SMTI GANGA DEVI KHATANIAR and 2 ORS W/O LT. HARI KT. PATOR

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2:DULU BHUYAN PATOR S/O LT. HARI KT. PATOR

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3:KARISHMA PATOR D/O LT. HARI KT. PATOR ALL ARE R/O VILL. MORIBUHRAGAON W/NO.6 P.O. and P.S. and DIST- MORIGAON ASSA

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Advocate for the Petitioner : MR.R ALI

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Advocate for the Respondent :

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BEFORE HONOURABLE MR. JUSTICE SUMAN SHYAM

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ORDER

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09.06.2020

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Heard Mr. M. H. Choudhury, learned counsel appearing for the revision

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petitioner. None has appeared for the respondent Nos.1 and 3 though served.

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Page No.# 2/3

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Mr. Choudhury submits that notice was sent to the respondent No.2 along with respondent Nos.1 and 3 by registered post with A/D but unserved notice has not returned back. Since the respondent No.2 is residing in the same household along with the respondent Nos.1 and 3 and they are related to one another, hence, presumption of service of notice be drawn in respect of respondent No.2.

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Upon examination of the record, I find that notice was sent in this case for service upon all the respondents including the respondent No.2 by registered post with A/D in the same address way back in the year 2017. Respondent Nos.1 and 3 are served. However, no unserved notice has returned back from the respondent No.2 till date. Since the respondent No.2 is a resident of the same household as the respondent Nos.1 and 3 and since proper service of notice has taken place upon the respondent Nos.1 and 3, who are the members of the same family, I am inclined to draw presumption of service of notice upon the respondent No.2 in this case. As such, this matter is deemed to be ready as regards service.

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The petitioner is the decree holder in Money Execution Case NO.01/2014 pending in the Court of learned Civil Judge, Morigaon. Aggrieved by the order dated 12.03.2015 passed by the learned Civil Judge, whereby, the petition filed on behalf of the revision petitioner seeking time to take steps for issuance of Writ in the Execution Case was rejected, the present revision petition has been filed. The impugned order dated 12.03.2015 reads as follows :-

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“ 12/3/2015 Ld. counsel of both parties are present. Ld. advocate for the D.H. filed a petition seeking time to take steps for writ. The D.H.

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Page No.# 3/3

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was directed to take steps within 3 days for issue of writ as per order dtd. 16-2-2014. Hence petition is rejected. The case is filed.”

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Mr. Choudhury submits that there was no willful default on the part of his client in taking steps but the petition seeking time had to be filed on account of circumstances beyond the control of the petitioner.

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I have perused the explanations furnished in the revision petition. The statements made therein have remained un-rebutted. Upon consideration of the facts and circumstances of the case in its entirety, I am of the view that the petitioner deserves one last opportunity to take steps for issuance of writ in the execution case which has been pending since long.

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In view of the above, this Revision Petition stands allowed.

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The impugned order dated 12.03.2015 stands set aside.

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The petitioner is directed to appear before the learned court below within four weeks from today and produce a certified copy of this order. Upon such appearance, the learned execution court would issue notice to the judgment debtors/respondents informing them about the next date fixed in the execution case and thereafter, proceed with the matter in accordance with law.

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With the above observation, the revision petition stands disposed of.

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Send back the LCR.

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JUDGE

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Comparing Assistant

Tilen Kr Nath v. on the Death of Hari Kanta Pator His Legal Heirs Smti Ganga Devi Khataniar and 2 Ors.

Case brief

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Tilen Kr Nath v. on the Death of Hari Kanta Pator His Legal Heirs Smti Ganga Devi Khataniar and 2 Ors.

Case brief

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