NABIR HUSSAIN Vs. STATE OF ASSAM

JUDGEMENT

(1.) 01.11.2019 Heard Mr. N. C. Barooah, learned counsel for the petitioners. Also heard Mr. R. Borpujari, learned Standing Counsel for the Revenue Department, Assam and Mr. CKS Baruah, learned Government Advocate for the respondent Nos. 2 and 3.

(2.) Vide order dated 27.03.2018 passed in WP(C) No. 33102010 with a direction to the Executing Court i.e. learned Civil Judge, Dhubri in Title Execution No. 052009 as follows- 8. Considering the submissions of the learned counsels for the parties. On going through the records, more specifically, the records of Title Execution Case No. 52009, Title Execution Case No. 31990, Misc. (J) Case No. 182008 and Misc.(J) Case No. 22015, the dispute raised before this court under Article 226 of the Constitution of India is a dispute which is in seisin with the Executing court of learned Civil Judge, Dhubri. It is seen from the records that a precept was issued by the Executing court way back in the year 1990 as referred hereinabove and the said precept has not yet been complied with by the Land and Revenue officials and rather, it seems that further acts by the said officials complicated the matter giving rise to various other disputes which cannot be permitted under the law. Once a precept is issued by an Executing court it will have to be executed and if not, the reasons as to why the same cannot be executed must be intimated to the Executing court and not to other persons nor to other authority. It is seen that the respondent Settlement Officer has webbed his own net thereby going beyond the jurisdiction inasmuch as, if there is any difficulty on his part to execute the precept, he is supposed to inform the same to the Executing court. Moreover, from the submissions of both the learned counsels appearing on behalf of the parties to this writ petition, it is noticed that new facts are coming up. The petitioners are claiming their right on the basis of the lawfully obtained decree. On the other hand, the respondent No. 4 had filed the title suit which was dismissed for default and as on date, there is no stay order of the execution of the said decree passed in Title Suit No. 581984 and as such, the Executing court shall take up this matter by giving due notice to the parties to the present writ petition and thereafter directing the issue whether the Title Execution Case No. 31990 can be further proceeded owing to various orders passed as seen from the records after hearing the parties to the present writ petition and to see that the decree may be executed. 9. From the record it is not found that the settlement officer hashad made any response to the precept received on 11.04.1990 which clearly shows that the said Execution proceeding is still continuing as on date. Subsequent reference by the Settlement Officer awaiting clarification from the Government who was a party to the suit is immaterial. Government in such a situation cannot sit as a reviewing authority when the decree was passed in its presence. Decree which is passed is to be executed without waiting for any further instruction as sought for by the Settlement Officer and the precept of the Executing court has the untrammelled force which cannot be resisted by the Government once the said decree is passed in its presence. Accordingly, this writ petition is disposed of with the aforesaid direction. The petitioners are aggrieved by the order dated 10.09.2018 passed in Title Execution No. 052009 in pursuance of the direction by this court in the said writ petition. On perusal of the said impugned order, it is found as follows-

(3.) It appears that T.Ex.52009 was dismissed vide order dtd. 041016. T.Ex.390 was ordered to be registered as Misc.(J) Case No. 2009 vide order dtd. 120609. So from 120609 the T.Ex.No.390 was renumberedregistered as Misc.(J) Case No. 2009 as same was filed alleging violation of decree passed in TS No.5884. This Misc.(J) Case No. 2009 was dismissed for non- prosecution vide order dtd.221209 as the petitioners' side has declined to proceed with the case. So, both execution cases i.e. T.Ex.390 and 509 have been disposed of. So, these cases are no more existing for doing anything. As T.Ex.390 and 509 are already disposed of long back, hence this Court has nothing to do. Keep the order of the Hon'ble Gauhati High Court in the CR. In my considered opinion, the learned court below ought to have entered into the execution proceeding and brought to its logical conclusion the said execution proceedings keeping in view that a precept had long back was issued in Title Execution Case No. 509 to the Government for satisfaction of the decree. Accordingly, the petitioners are given the liberty to file Review Petition for reviewing order dated 10.09.2018 along with necessary delay condonation application.