Page No.# 1/4 GAHC010178472026 undefined THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : I.A.(Civil)/2912/2026 MS ASEAN AGENCIES REPRESENTED BY ITS PROPRIETOR -SRI TARIK TALOM AGED ABOUT 45 YEARS. S/O- TAROK TALOM PRESENTLY RESIDING AT H/NO- HARMONY APARTMENT, VIP ROAD, P.O/ NOONMATI, P.S. -SATGAON. GUWAHATI-26, DISTRICT-KAMRUP M, ASSAM. VERSUS THE NORTH EAST FRONTIER RAILWAY AND 2 ANR REPRESENTED BY THE GENERAL MANAGER CONS., MALIGAON, GUWAHATI11 2:THE CHIEF ENGINEER CONS LUMDING PROJECT NORTHE EAST FRONTIER RAILWAY MALIGAON GUWAHATI-11 3:DEPUTY CHIEF ENGINEER /CON/ AIZAWL/ NORTH EAST FRONTIER RAILWAY AIZAWL MIZORAM-7960 Advocate for the Petitioner : M P CHOUDHURY, MR M Z RAHMAN,MRS. P GOSWAMI,MS N SAIKIA Advocate for the Respondent : MR SISHIR DUTTA, Page No.# 2/4 :: BEFORE :: HON’BLE MR. JUSTICE PARTHIVJYOTI SAIKIA O R D E R 26.08.2026 Heard Ms. N. Saikia, the learned counsel appearing for the applicant. Also heard Mr. S. Dutta, the learned Senior Counsel assisted by Mr. G. Goswami, the learned counsel representing the respondents. 2. This application has been filed praying for vacating the interim order of stay dated 11.08.2026 passed in CRP (IO) No.374/2026. 3. In Money Execution (Arb.) Case No.56/2026, the learned Civil Judge (Sr. Divn.) No.3, Kamrup (M) at Guwahati issued warrant of attachment of movable properties against the present respondents. 4. The respondents filed the aforesaid civil revision petition under Article 227 of the Constitution of India challenging the jurisdiction of the court below in view of Section 10 of the Commercial Courts Act, 2015. In fact, the court below lost its jurisdiction pursuant to a judgment of this Court in F.A.O. No.73/2025. Therefore, the order dated 08.07.2026 passed in Money Execution (Arb.) Case No.56/2026 passed by the learned Civil Judge (Sr. Divn) No.3, Kamrup(M) at Guwahati was stayed by this Court. 5. Now, pursuant to a fresh Notification issued by the Government of Assam, the Civil Judge (Sr. Divn.) has the jurisdiction under the Commercial Courts Act. Therefore, the present Interlocutory Application has been filed praying for vacating the aforesaid stay order. Page No.# 3/4 6. Mr. Dutta has relied upon the provision of Order 38 Rule 5 of the Code of Civil Procedure to challenge the warrant of attachment issued by the learned Civil Judge (Sr. Divn.) No.3, Kamrup(M) at Guwahati. Mr. Dutta has submitted that the learned court below has mechanically issued the attachment warrant without complying with the provision of law as laid down in Order 38 Rule 5 of the CPC. 7. Mr. Dutta further submits that the judgment debtor is ready to pay 50% of the decreetal amount and in spite of that, the attachment warrant has been unnecessarily issued. In order to buttress his point, Mr. Dutta has relied upon a judgment of the Hon’ble Supreme Court that was delivered in Raman Tech. & Process Engg. Co. v. Solanki Traders, (2008) 2 SCC 302. Paragraphs 5 and 6 of the said judgment is quoted as under: “5. The power under Order 38 Rule 5 CPC is a drastic and extraordinary power. Such power should not be exercised mechanically or merely for the asking. It should be used sparingly and strictly in accordance with the Rule. The purpose of Order 38 Rule 5 is not to convert an unsecured debt into a secured debt. Any attempt by a plaintiff to utilise the provisions of Order 38 Rule 5 as a leverage for coercing the defendant to settle the suit claim should be discouraged. Instances are not wanting where bloated and doubtful claims are realised by unscrupulous plaintiffs by obtaining orders of attachment before judgment and forcing the defendants for out-of-court settlements under threat of attachment. 6. A defendant is not debarred from dealing with his property merely because a suit is filed or about to be filed against him. Shifting of business from one premises to another premises or removal of machinery to another premises by itself is not a ground for granting attachment before judgment. A plaintiff should show, prima facie, that his claim is bona fide and valid and also satisfy the court that the defendant is about to remove or dispose of the whole or part of his property, with the intention of obstructing or delaying the execution of any decree that may be passed against him, before power is exercised under Order 38 Rule 5 CPC. Courts should also keep in view the principles relating to grant of attachment before judgment. (See Premraj Mundra v. Md. Manech Gazi [AIR 1951 Cal 156] for a clear summary of the principles.)” 8. Mr. Dutta has submitted that the judgment debtor is the North East Frontier Page No.# 4/4 Railways and there is no possibility of disposal of the whole or any part of its property; nor there is any possibility that Railways will remove the whole or any part of his properties from the local limits of the jurisdiction of the court. 9. Ms. Saikia has submitted that since the new notification empowers the court of the Civil Judge (Sr. Divn.) to try commercial suits, the entire civil revision petition has become infructuous. 10. I have considered the submissions made by the learned counsels of both sides. 11. This Court has decided to agree with Mr. Dutta that while issuing the warrant of attachment of movable properties of the judgment debtor, the trial court had acted mechanically. Therefore, the warrant of attachment issued for recovery of ₹25,85,20,406.82 dated 08.07.2026 in Money Execution (Arb.) Case No.56/2026 is set aside. The decree holder is directed to approach the executing court again with such a prayer and this time, the executing court shall decide the matter afresh after hearing both sides. 12. The interim order 11.08.2026 passed in CRP (IO) No.374/2026 stands vacated accordingly. With the aforesaid direction, the Interlocutory Application is disposed of. JUDGE Comparing Assistant