Page No.# 1/4 GAHC010112782024 2025:GAU-AS:14119 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : I.A.(Civil)/2270/2024 ANOWAR HUSSAIN S/O ABDUL GAFUR, RESIDENT OF VILLAGE GHILAJARI, MOUZA GHILAJARI, PS HOWLY, DIST BARPETA, ASSAM VERSUS MUSST OJUFA KHATUN D/O LATE TOMASER ALI, W/O NURUL ISLAM, RESIDENT OF VILLAGE JASHIHATI, MOUZA GHILAJARI, PS HOWLY, DIST BARPETA, ASSAM Advocate for the Petitioner : MR. J AHMED, H G DAISY,R BEGUM,MS A HUSSAIN Advocate for the Respondent : , In RSA Case No. 141/2024 BEFORE HONOURABLE MR. JUSTICE MRIDUL KUMAR KALITA ORDER 22.10.2025 1. Heard Mr. J. Ahmed, the learned counsel for the applicant. Also heard Mr. N. Haque, the learned counsel for the respondent. Page No.# 2/4 2. This application under Order 41 Rule 5 of the Code of Civil Procedure, 1908 has been filed by the applicant/appellant, in connection with Regular Second Appeal No. 141/2024. 3. By this application, the applicant has prayed for staying the execution of the judgment and decree dated 22.03.2024, and 01.04.2024 respectively, passed by the learned Civil Judge, Barpeta in Title Appeal No. 41/2022, whereby, it upheld the judgment and decree dated 27.04.2022, passed by the learned Munsiff No. 1, Barpeta in Title Suit No. 80/2014, whereby, the counter claim preferred by the present respondent, wherein, amongst other reliefs the relief of declaration of right, title and interest over the suit land and confirmation of possession over the suit land in favour of the present applicant was rejected and the counter claim was dismissed. 4. The learned counsel for the applicant has submitted that though the first appeal preferred by the present applicant before the First Appellate Court, i.e. the Court of the learned Civil Judge, Barpeta in Title Appeal No. 41/2022 was directed against the dismissal of the counter claim filed by the present applicant, moreover, while passing the impugned judgment dated 22.03.2024, the First Appellate Court decided all the issue involved in this suit, as well as in the counter claim. 5. He further submits that as the Regular Second Appeal No. 141/2024, filed by the present applicant, impugning the judgment dated 22.03.2024, passed in Title Appeal No. 41/2022, has already been admitted and one substantial question of law also been formulated by this Court on 02.08.2024, the applicant would be highly prejudiced if the Page No.# 3/4 decree granted in favour of the respondent by the Court of the learned Munsiff No. 1, Barpeta in Title Suit No. 80/2014 is executed during pendency of the suit. 6. On the other hand, the learned counsel for the respondent, Mr. N. Haque has vehemently opposed the prayer for grant of stay of the execution of the decree granted in favour of the respondent by the Trial Court, i.e. the learned Munsiff No. 1, Barpeta in Title Suit No. 80/2014. 7. He submits that in the aforesaid suit, the present respondent was the plaintiff and he had prayed for a decree of declaration of right, title and interest of the plaintiff’s/present respondent as well as for recovery of possession of the suit land. 8. He further submits that the said suit was decreed in favour of the present respondent by the judgment dated 27.04.2022. 9. He further submits that by the said judgment, the counter claim filed by the present applicant was dismissed. Thereafter, the applicant preferred the first appeal only against the dismissal of the counter claim, whereas; the judgment by which the suit of the present respondent was decreed in his favour was not put to challenge. Hence, he submits that no case for stay of the execution of the decree, which is not put to challenge, has been made out by the present applicant. 10. I have considered the submissions made by the learned counsel in this case. Apparently, on perusal of the records, it appears that the decree of declaration of right, title and interest in respect of the suit land in favour of the present respondent was passed on 27.04.2022, by the Court Page No.# 4/4 of the learned Munsiff No. 1, Barpeta in Title Suit No. 80/2014. 11. By the said judgment, the counter claim of the present applicant was dismissed. It also appears that though the Title Appeal No. 41/2022 was preferred by the present applicant, it was directed only against dismissal of his counter-claim and the decree granted in favour of the present respondent was not put to challenge. 12. Under aforesaid circumstances, this Court is of the considered opinion that no case has been made out for grant of stay under Order 41 Rule 5 of the Code of Civil Procedure, 1908. 13. The submissions of the learned counsel for the applicant that in the event, the connected regular second appeal is decided in favour of the present applicant, the decree would become infructuous, if stay is not granted also, is not a convincing submission, as there are appropriate provisions in the Code of Civil Procedure, 1908 to address such a situation. 14. For the aforesaid reasons, this Interlocutory Application (Civil) is dismissed. JUDGE Comparing Assistant