Page No.# 1/3 GAHC010116652024 2025:GAU-AS:2676 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : CRP(IO)/204/2024 ABDUL MOTIN ANCHARY S/O- ABDUL JALIL, R/O- VILL- UTTAR KHATOWAL, P.O.- UTTAR KHATOWAL, P.S.- RUPAHIHAT, DIST.- NAGAON (ASSAM), PIN- 782128. VERSUS MUSSTT FOZILA KHATUN W/O- ABDUL ROFIQUE, D/O- ABDUL JALIL, R/O- VILL.- DAKHIN KHATOWAL, P.O.- TARABARI, P.S.- RUPAHIHAT, DIST.- NAGAON (ASSAM), PIN- 782125. For the petitioner (s) : Mr. A. A. Dewan Advocate For the respondent (s) : Ms. S. A. Khalifa, Advocate BEFORE HON’BLE MR. JUSTICE DEVASHIS BARUAH O R D E R 12.03.2025 Mr. A. A. Dewan, the learned counsel appearing on behalf of the petitioner submits that the petitioner has wrongly filed an Page No.# 2/3 application under Order XXI Rule 29 of the Code of Civil Procedure, 1908 (for short, ‘the Code’) before the learned Executing Court. The petitioner ought to have filed an application under Order XLI Rule 5(2) read with Section 151 of the Code for stay of the execution taking into account that there is an application filed under Order IX Rule 13 of the Code for setting aside the ex-parte decree. He, therefore, submits that he may be permitted to withdraw the instant application and withdrawal of the instant petition should not affect the right of the petitioner who is the defendant in the suit to file appropriate application seeking stay of the execution proceedings from the learned Trial Court. 2. The learned counsel for the petitioner further submits that if such an application is being filed, the learned Trial Court should decide the said application on its own merit and without being influenced by the order dated 04.01.2024 as well as the withdrawal of the instant proceedings. 3. Taking into account the above, the instant proceeding stands closed on withdrawal. 4. The petitioner would be at liberty to file an application under Order XLI Rule 5 (2) read with Section 151 of the Code before the learned Trial Court before whom the application under Order IX Rule 13 of the Code has been filed for setting aside an ex-parte decree. 5. It is further observed that if such an application is filed, the learned Trial Court shall decide the same on its own merit without Page No.# 3/3 being influenced by the order dated 04.01.2024 passed in Title Execution Case No.10/2021 as well as the withdrawal of the instant petition. 6. Taking into account the above, the order dated 21.06.2024 passed in the instant proceedings stands vacated. JUDGE Comparing Assistant