Partly allowed

Makan Kataki and 2 Ors. v. Nilamoni Kataki and Anr.

Gauhati HC10 Feb 2020CRP/63/2019

Case brief

AI extract

What is this about?

The High Court set aside the order dated 08.06.2019 of Munsiff, Nagaon, dismissing a petition under Section 47 Cr.P.C. by the judgment debtor. The Court held that the petitioner had not admitted that an annexed Idam Commission was appointed as alleged. The execution process must be reconsidered in light of the decree dated 08.06.2015 requiring appointment of Idam Commission.

What did the court decide?

The order dated 27.03.2019 in T.Ex.No.24/2017 is set aside. The matter is remanded to Munsiff, Nagaon for fresh consideration. Civil revision petition is disposed of.

Makan Kataki and 2 Ors. Vs Nilamoni Kataki and Anr. — Execution and Attachment | Gauhati HC (2020)

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GAHC010267712019

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

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CRP 63/2019

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1:MAKAN KATAKI AND 2 ORS. W/O SRI KHAGEN SARMAH R/O TELIA BEBEJIA MAUZA P.O. AND P.S. JURIA DIST.-NAGAON ASSAM PIN-782124 2: GITA KATAKI D/O LT. KESHAB KATAKI R/O TELIA BEBEJIA MAUZA P.O. AND P.S. JURIA DIST.-NAGON ASSAM PIN-782124 3: KHAGEN CHANDRA SARMAH S/O LT. CHANDRA KANTA SARMAH R/O TELIA BEBEJIA MAUZA P.O. AND P.S. JURIA DIST.-NAGON ASSAM PIN-782124 VERSUS 1:NILAMONI KATAKI AND ANR. S/O LT. KESHAB KATAKI R/O TELIA BEBEJIA MAUZA

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P.O. AND P.S. JURIA DIST.-NAGON ASSAM PIN-782124 3:KHEM JYOTI KATAKI S/O LT. DILIP KATAKI R/O TELIA BEBEJIA MAUZA P.O. AND P.S. JURIA DIST.-NAGON ASSAM PIN-782124

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Advocate for the Petitioner : MR. A J SARMA Advocate for the Respondent : MR. K D CHETRI

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BEFORE HONOURABLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA

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ORDER

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Date : 10-02-2020

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Heard Mr. KD Chetri, learned counsel for the petitioner. Also heard Mr. SK Ghosh, learned counsel for the respondents.

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The respondents herein are the decree holder of the judgment and decree dated 08.06.2015 in TA No.15/2014 of the learned Civil Judge Nagaon.

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The relevant provision of the judgment of the learned Civil Judge is as follows:

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“1. It is declared that the plaintiffs have right, title and interest over the land and house

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described in schedule ‘’ka’ and ‘kha’ (i.e ¼ share each) and confirmation of possession over the said property.

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Amin Commission is appointed for measurement of the suit land described in schedule Ka(1) and to evict the defendants from the half share of the property and plaintiffs be put in possession of the same.

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Issue precept to the Revenue Authority to partition ‘ka’ schedule land in favour of the

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plaintiffs to the extent of 1/4^th share each and to make necessary correction in the revenue record

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and accordingly deliver possession to the plaintiffs after such partition.

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Prepare preliminary decree accordingly.”

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Apparently the requirement of the judgment is that the Amin Commission is required to be appointed for measurement of the suit land and to evict the defendants from half the share of the property and the plaintiffs be put in possession of the same. The judgment debtor filed the petition under Section 47 Cr.P.C., in the resultant T.Ex.No.24/2017 stating inter alia in paragraph 5 thereof as follows:

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“5. That on a precept issued by the Court the revenue authority without starting a partition case without hearing the parties and without making any field verification issued a separate patta to the plaintiffs, without giving the descriptions of the land and without specifying the land by mentioning boundaries and measurement of the land and reported the matter to the Honourable court. The said partition is clearly a paper work only. On the basis of that report a decree cannot be executed. Moreover there is no mention in the report regarding the houses situated over the land.”

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The said application was given a consideration by the learned Munsiff No.1 vide order dated 27.03.2019 wherein in respect of the contentions raised in paragraph 5 the following conclusions were arrived at:

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“The J.D in paragraph 5 of their petition have admitted that the Court has issued a precept and the revenue staff u/s 54 of the CPC have completed the process of partition by leaps and bounds. The opposite parties also claim that the petitioners have mis-conceived the decree of the Court and decree passed in Title Appeal No.15/14 clearly states that how the decree is to be executed. So, there is no mistake after all on the evidence on the record. On the day of hearing L.d. counsel for the J.D petitioner was absent.”

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From a reading of the order dated 27.03.2019, it is discernible that the learned Munsiff was of the view that in paragraph 5 of the petition, the petitioner judgment debtor had admitted that the Court had issued a precept and the revenue staff under Section 54 of the CPC had completed the process of partition by leaps and bounds.

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The present revision petition is preferred by the judgment debtor on the ground that although it was a requirement of the judgment and decree dated 08.06.2015 that an Amin Commission be appointed for measurement of the suit land described in schedule Ka(1) and to evict the defendants from the half share of the property, but the execution process has been initiated and continued without appointment of Amin Commission for measurement of the land.

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Mr. KD Chetri, learned counsel for the respondent by referring to the aforementioned extracted contents of the judgment contends that the conclusion that it is an admitted position of the judgment debtor that an Amin Commission has been appointed by referring to paragraph 5 of the Section 47 petition of the petitioner judgment debtor is an incorrect conclusion. When we examine the contents of paragraph 5 of the said petition, it is not reflected that any Amin Commission had been appointed. As the conclusion of the learned Munsiff is based on the averments made in paragraph 5 and paragraph 5 does not so contain that it is an admitted position of the judgment debtor that an Amin Commission was appointed, we interfere with the order dated 27.03.2019 of the learned Munsiff No.1 in T.Ex.No.24/2017 and remand the matter back for a fresh consideration as to whether the requirement of the judgment and decree to appoint a Amin Commission to identify the half share from which the judgment debtor are to be evicted have been duly complied with or not.

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Accordingly, both the parties shall appear before the learned Munsiff Nagaon on or before 18.03.2020 and upon their appearance due consideration be given within a period of 15(fiteen) days therefrom.

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LCR be sent back forthwith.

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It is stated that the decree holder No.1 Nilamoni Kataki is having a serious health issue and therefore, the matter requires an urgent consideration. The learned Munsiff shall give a due consideration of the said aspect and decide the execution case by following the requirement of the judgment and decree dated 08.06.2015 of the learned Civil Judge Nagaon and bring an end to the proceeding at the earliest.

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Civil revision petition accordingly stands disposed of.

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JUDGE

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Comparing Assistant

Makan Kataki and 2 Ors. v. Nilamoni Kataki and Anr.

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Makan Kataki and 2 Ors. v. Nilamoni Kataki and Anr.

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