Page No.# 1/7 GAHC010247672024 undefined THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : CRP(IO)/489/2024 CHANDRAPUR THAN BAZAR COMMITTEE REPRESENTED BY ITS GENERAL SECRETARY SRI RANJIT BORO, S/O LATE KANAK BORO, R/O CHANDRAPUR, THAKURKUCHI GAON, P.O.- PRAGJYOTISHPUR, P.S.-CHANDRAPUR, PIN-781150, DIST- KAMRUP (M), ASSAM VERSUS BIKASH CHAKRABORTY AND 4 ORS. S/O LATE BINOY CHAKRABORTY, R/O VILL- CHANDRAPUR, BAGICHA, P.S.-CHANDRAPUR, PIN-781150, DIST- KAMRUP (M), ASSAM 2:SANJU DEY S/O LATE KUKIL DEY R/O VILL- CHANDRAPUR BAGICHA P.S.-CHANDRAPUR PIN-781150 DIST- KAMRUP (M) ASSAM 3:JISHU DEV S/O LATE JITEN DEV R/O VILL- CHANDRAPUR BAGICHA P.S.-CHANDRAPUR PIN-781150 DIST- KAMRUP (M) ASSAM 4:TARINI DEKA S/O LATE BOGARAM DEKA Page No.# 2/7 R/O RAJGARH P.O.- CHANDRAPUR DIST- KAMRUP (M) ASSAM 5:HAREN SAIKIA S/O LATE TUTULA SAIKIA R/O VILL- CHANDRAPUR BAGICHA P.S.-CHANDRAPUR PIN-781150 DIST- KAMRUP (M) ASSA Advocate for the Petitioner : MR P K KALITA, MD A ISLAM,MR. A DEKA,MR. N DAS Advocate for the Respondent : MR. N N JHA (FOR CAVEATOR), MS M SAHOO (FOR CAVEATOR) BEFORE HONOURABLE MR. JUSTICE ROBIN PHUKAN ORDER Date : 04.08.2025 Heard Mr. N. Das, learned counsel for the petitioner. Also heard Mr. N.N. Jha, learned counsel for the respondent No. 5. 2. In this petition, under Article 227 of the Constitution of India, the petitioner has challenged the correctness or otherwise of the order dated 19.07.2024 and 31.08.2024, passed by the learned Civil Judge (Junior Division) No. 2, Kamrup(M), Guwahati, in Misc. (J) Case No. 317/2013, arising out of Title Execution Case No. 3/2007. 3. It is to be noted here that vide impugned order dated 19.07.2024, the learned Civil Judge (Junior Division) No. 2, Kamrup(M), Guwahati (‘Executing Court’, for short) had fixed the case for argument on 31.08.2024, after cross- examination of the official witness, and vide impugned order dated 31.08.2024, Page No.# 3/7 the learned Executing Court had dismissed the petition No. 1901, filed by the opposite party Nos. 2, 3 and 4, seeking adjournment of the hearing and to recall the order dated 19.07.2024, and to afford an opportunity to them to adduce evidence. 4. Mr. Das, learned counsel for the petitioner submits that the respondent No. 5 as plaintiff instituted a title suit, being Title Suit No. 452/1996, against the petitioner and others for declaration of right, title and interest and for khas possession over the suit land, and thereafter, the petitioner, on receipt of summon, appeared before the learned trial Court and contested the suit by filing written statement, and the said suit was renumbered as Title Suit No. 8/1999, and thereafter, the same came to be dismissed, vide judgment and decree dated 30.09.1999. Mr. Das also submits that thereafter, being aggrieved by the said dismissal, the respondent No. 5 had preferred one title appeal, being Title Appeal No. 55/1999, and the same was allowed, vide judgment and decree dated 14.12.2000. Mr. Das submits that thereafter, the defendants had preferred one second appeal before this Court and the same also came to be dismissed, vide judgment and order dated 12.01.2007, and thereafter, the respondent No. 5 had filed an execution case, being Title Execution Case No. 3/2007, and in the said execution case, the respondent Nos. 1 to 4 filed an application under Order 21 Rule 97 CPC, which was numbered as Misc. (J) Case No. 317/2013, and the said case proceeded as per law and after completion of cross-examination of P.W.s, the learned Executing Court, vide impugned order dated 19.07.2024, had fixed the next date on 31.08.2024, for argument, without giving any opportunity to the present petitioner to adduce his evidence. Mr. Das further submits that thereafter, the opposite party Nos. 2, 3 and 4 therein had filed a petition for recalling the order dated 19.07.2024, but the said petition came to be Page No.# 4/7 dismissed, vide impugned order dated 31.08.2024, and being aggrieved, this revision petition is preferred by the petitioner. 4.1. Mr. Das, learned counsel for the petitioner further submits that the impugned orders dated 19.07.2024 and 31.08.2024, were passed erroneously without understanding the true purport and import of Order 18 Rule 2(2) CPC and on such count, serious prejudice is caused to the petitioner and under such circumstances, it is contended to allow this petition by setting aside the impugned orders. 5. On the other hand, Mr. Jha, learned counsel for the respondent No. 5 has vehemently opposed the petition. Mr. Jha has pointed out that the execution proceeding was initiated in the year 2007, being Title Execution Case No. 3/2007, and since then, the same is pending for more than 18 years and by this way or that way, the present petitioner has been resisting in execution of the decree and preventing the respondent No. 5 from enjoying the fruit of the decree. Mr. Jha has also pointed out that the petitioner had preferred one first appeal and thereafter, one second appeal and had exhausted his remedies and being colluded with the respondent Nos. 1 to 4 herein, filed a petition under Order 21 Rule 97 CPC, and that the respondent Nos. 1 to 4 are third party and the Misc. (J) Case No. 317/2013, was registered on the basis of the application filed by them, and that the witnesses of the opposite parties had already been examined, they declined to adduce further evidence, and as such, the question of fixing the case for D.W. does not arise. Mr. Jha further submits that the petitioner herein is the judgment debtor and having exhausted all the legal remedies available to him, he in collusion with the respondent Nos. 1 to 4, had filed the Misc. (J) Case No. 317/2013, and that there is no merit in this petition and therefore, the same is liable to be dismissed. Page No.# 5/7 6. Having heard the submissions of learned counsel for both the parties, I have carefully gone through the petition and the documents placed on record, and also perused the impugned orders dated 19.07.2024 and 31.08.2024. 7. The impugned orders dated 19.07.2024 and 31.08.2024, read as under: “Misc (J) 317/2013 19.07.2024 Both sides are represented. Official witness is also present. The official witness is cross-examined and discharged. As such, cross of official witness is closed. Fix 31.08.2024 for Argument. As dictated, Civil Judge Jr. Division No- 2, Kamrup (M), Guwahati.” “ Misc. (J) Case No. 317 of 2013 (Arising out of T.Ex. No. 03 of 2007) ORDER 31.08.2024 Parties are represented. Today is fixed for argument. The Opp. Party No.2,3 and 4 have filed a petition today bearing No.1901 seeking adjournment of the hearing today and Page No.# 6/7 to recall the order dated 19.07.2024 thereby giving the petitioners to adduce evidence. I have heard both sides. The learned counsel for the Opp. Party declined to evidence. On perusal of the C.R. it appears that on last occasion the examination of the official witness was completed however today is fixed for argument. The learned counsel for the Opp. Party verbally submitted that the Opp. Party is not willing to file DW evidence. Hence the question of fixing for DW evidence does not arise. Accordingly, the petition No.1901 is disposed of. Fix. 30-9-24 for argument. Civil Judge (Jr.Divn) No.2, Kamrup (M) Guwahati.” 8. It appears that the petitioner in a petition under Order 21 Rule 97 CPC, is opposite party No. 2 and the respondent No. 5 herein is the opposite party No. 1, and the respondent Nos. 1 to 4 are the applicants. It also appears that on 19.07.2024, the case was fixed for evidence of the petitioners’ side and after completion of their evidence, the case was fixed on 31.08.2024 for argument. Further, from the impugned order dated 31.08.2024, it appears that on 19.07.2024, the counsel for the opposite parties declined to adduce evidence and hence, the learned Executing Court had fixed the case for argument. 9. It is well settled in a catena of decisions that a petition filed under Order 21 Rule 97 CPC has to be dealt with under Rule 101 CPC, and the said petition was filed by the respondent Nos. 1 to 4 herein and they had already adduced evidence and they agitated against the judgment and decree passed in favour of the respondent Nos. 5 and the opposite party Nos. 2 to 4 declined to adduce Page No.# 7/7 evidence, and since the petitioner was the judgment debtor, and since he had already exhausted his legal remedies, the question of allowing to adduce evidence by him does not arise. Further, since the application filed under Order 21 Rule 97 CPC has to be dealt with under Rule 101 CPC, the question of invoking the provision of Order 18 Rule 2(2) CPC does not arise. 10. Indisputably, the execution proceeding is pending since the year 2007, while the decree was passed in the year 1999. It is also to be noted here that in the case of Periyammal (Dead) Through LRs and Ors. vs. V. Rajamani and Anr., in Civil Appeal Nos. 3640-3642 of 2020, Hon’ble Supreme Court has directed that all execution proceedings shall be completed within a period of six months. In the instant case, not only six months, but also more than 18 years has elapsed. 11. In the given facts and circumstances, this Court is of the view that the impugned orders, so passed by the learned Executing Court, suffers from no illegality or infirmity requiring any interference of this Court, and accordingly, this revision petition stands dismissed. JUDGE Comparing Assistant