UNION OF INDIA, NORTH EAST FRONTIER RAILWAY, GUWAHATI, MALIGAON, ASSAM Vs. ON THE DEATH OF BANESWAR DAS HIS LEGAL HEIR MANJU DAS

JUDGEMENT

(1.) Heard Mr. B Sarma, learned counsel for the applicant and Mr. B D Deka, learned counsel appearing on behalf of legal heirs of deceased Baneswar Das, the respondent No. 1 in LA Appeal No. 36/2018 and the Decree holder in Money Execution case No. 29/2015 pending in the executing court of learned District Judge, Kamrup at Amingaon.

(2.) The LA Appeal No. 36/2018 was filed on 25.05.2018 in this court against the judgment and order dated 17.01.2015 passed in Misc Reference Case No. 43/2014 (New) corresponding to Misc Reference Case No. 01/2006 (Old) passed by the learned District Judge, Kamrup (R) at Amingaon. There was delay of 1130 days in preferring the LA Appeal 36/2018 and as such IA (Civil) 2142/2018 was filed for condonation of the delay of 1130 days. By the said judgment dated 17.01.2015 in Reference Case No. 43/2014, late Baneswar Das, the petitioner therein was awarded compensation of Rs. 13,20,000/- along with 9% interest on the said amount from the date of acquisition of a plot of land measuring 2 Kathas 10 Lechas covered by KP Patta No. 177 of village Bihdiya under Mouza Chaygaon which was acquired in LA case No. 43/1987 for construction of Jogighopa-Guwahati railway line. The said Baneswar Das filed Money Execution case No. 29/2015 in the court of learned District Judge, Kamrup (R) at Amingaon in order to execute the order passed in the said reference case as there was no move on the part of the applicant Railways for compliance of the award. The land was acquired by the District Collector, Kamrup (R) for the requiring department i.e. the applicant Railways and as such it was impleaded as the judgment debtor No. 2 in the execution proceeding. Once it came to the knowledge of the present applicant, NF Railway it preferred a petition as the judgment debtor No. 2 in Money Execution No. 29/2015 under Order XXI Rule 26 of the CPC seeking for stay of the execution proceeding on the ground that the applicant railway authority was contemplating to prefer an appeal in the High Court. After filing of the said petition on 15.11.2016, the matter was adjourned for hearing on different grounds and the execution proceeding was pending.

(3.) On 29.03.2017 the decree holder Baneswar Das filed written objection against the petition filed by the applicant Railways under Order XXI Rule 26 of the CPC. In the said objection it was specifically stated that the applicant Railways filed the application under Order XXI Rule 26 of the CPC as a dilatory tactics to avoid execution of the award. It was further raised that the time for filing appeal against the judgment and order had already elapsed by more than two years from the date of passing the judgment. The said petition under Order XXI Rule 26 of the CPC was finally disposed of vide order dated 12.10.2018 by the learned District Judge, Kamrup at Amingaon. Vide the said order, the petition under Order XXI Rule 26 was disposed of giving no further time to the applicant Railways for preferring appeal. The decree holder Baneswar Das was directed to take appropriate steps in the execution proceeding. 09.03.2018 was the next date fixed in Money Execution No. 29/2015. The applicant Railways appeared and filed a petition seeking some more time for payment of decreetal amount as the certified copy of the court's judgment was not with it. Vide order dated 09.03.2018, next date in the execution proceeding was fixed on 07.04.2018 for payment/ steps/ necessary order.