RUBYIOUS THUBRU ALIAS RUBY THUBRU Vs. KONGKA LAMARE

JUDGEMENT

(1.) Heard Mr. M.Z. Ahmed, learned Counsel for the Petitioner. Also heard Dr. O.V.D. Ladia, learned Counsel for Respondents.

(2.) There was a suit (TS. No. 13/1992) filed by one Smti. Kongka Lamare for declaration of right, title and interest and also recovery of possession. On her death, the present Respondents, being legal heirs, were substituted as Plaintiffs. One Helency Thubru was the dependent in the said title suit. An ex-parte judgment and decree was passed on 07.10.1994 by the Court of Presiding Officer, Subordinate District Council Court, Jaintia Hills District, Jowai in favour of the Plaintiffs. The Defendant preferred an appeal being Title Civil Appeal No. 03/1994 and the learned Judge of District Council Court, Jaintia Hills District, Jowai, vide an order dated 21.12.1994, stayed the operation of the said judgment and decree dated 07.10.1994. In the meantime, Defendant Helency Thubru died on 02.06.2005 but her legal heir Smti. Rubyious Thubru @ Ruby Thubru, present Petitioner, was substituted only on 26.05.2006. The aforementioned appeal was dismissed by the learned Additional Judge, District Council Court, Shillong, vide order dated 10.09.2007. An application under Order 21, Rule 6 of the Code of Civil Procedure, 1908, was filed on 11.08.2009 by the decree holder/Plaintiffs (present Respondents) for execution of the decree. It was registered as Execution Case No. 01/ 2009. The learned Execution Court on the same day i.e. 11.08.2009, without issuing any notice to the judgment-debtor (present Petitioner), vide order dated 11.08.2009, directed the bailiff of the Court to execute the said judgment and decree dated 07.10.1994. The decree holder, present Respondents, then filed an application under Section 39 read with Order 21, Rule 6 of the Code of Code of Civil Procedure, 1908, praying for transfer of the decree to be executed by the Judge, District Council Court at Shillong, as two of the immovable/landed properties, one at Nongthymmai and the other at Nongfim Hills with movable properties, are lying. The learned Presiding Officer, Subordinate District Council Court, Jaintia Hills District, Jowai, by order dated 20.08.2009, accordingly transferred the decree for execution at Shillong by his superior Judge i.e. Judge, District Council Court, Shillong.

(3.) Mr. Ahmed, learned Counsel for the Petitioner, submits that the impugned judgment and decree dated 07.10.1994 passed by the learned Presiding Officer, Subordinate District Council Court, Jaintia Hills District, Jowai, in Title Suit No. 13/1992, judgment and order dated 10.09.2007 passed by the learned Additional Judge, District Council Court, Shillong, in Title Civil Apeal No. 01/2006 and ex-parte orders dated 11.08.2009, 20.08.2009 and 30.09.2009, passed by the learned Presiding Officer, Subordinate District Council Court, Jaintia Hills District, Jowai, in Title Execution Case No. 01/2009 in respect of properties at Jowai, with compensatory costs, are liable to be set aside and quashed on the following grounds: