Page No.# 1/5 GAHC010108932026 2026:GAU-AS:7732 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : CRP(IO)/205/2026 RAJESH KUMAR PINCHA S/O LATE SOHAN LAL PINCHA, R/O MARWARI PATTY, P.O. AND P.S.- JORHAT, JORHAT- 785001, ASSAM VERSUS MAHESH KUMAR RATHI S/O LATE MEGHRAJ RATHI, R/O CHAMBER ROAD, P.O. AND P.S.- JORHAT, JORHAT- 785001, ASSAM Advocate for the Petitioner : MR. A K SAHEWALLA, S SENGUPTA,MR P GOGOI,MR. W SHARMA Advocate for the Respondent : , BEFORE HONOURABLE MR. JUSTICE KALYAN RAI SURANA ORDER Date : 02.06.2026 Heard Mr. A.K. Sahewalla, learned counsel for the petitioner and also heard Mr. S.C. Keyal, learned senior counsel assisted by Ms. N. Kakaty, learned counsel. The learned counsel for the respondent has submitted that he has been instructed to appear in the matter and he prays for some time to file Page No.# 2/5 vakalatnama. As he has submitted that he has the instructions to appear, the matter has been heard. 2. As the respondent has entered appearance through the learned instructing counsel of Mr. S.C. Keyal, learned senior counsel, the Court is inclined to issue rule returnable forthwith without requiring any steps to be taken. In view of the issue raised, the matter has been heard. 3. The petitioner is the landlord of the respondent and had filed T.S. No.20/2014, before the Court of learned Civil Judge (Senior Division), Jorhat for ejectment, recovery arrear rent and for compensation. The said suit was decreed on contest by judgment and consequential preparation of decree dated 22.08.2025, by which the petitioner was held entitled to a decree for khas possession of the suit premises by ejectment of the respondent, for arrear rent, and enhanced rent @ 10% in every 2 (two) years and cost of the suit. As there is no dispute with regard to the suit premises which is described in Schedule-A to the decree passed by the learned trial Court, the description of the suit premises is not referred to in this order. 4. Aggrieved by the judgment and decree dated 22.08.2025, the petitioner had filed a review petition under Order XLVII Rule 1 read with Section 114 of the CPC on the ground that in the judgment and decree of the learned trial Court, there was an omission to specify the period for recovery of enhanced rent upto the date of eviction or delivery of khas possession and accordingly, it was projected that there was an ambiguity in the impugned judgment and decree passed by the learned trial Court. It is submitted that though the review petition was filed on 04.11.2025, the same is still pending adjudication. Page No.# 3/5 5. In the meantime, in the appeal which was filed by the respondent before the learned Additional District Judge, Jorhat which was registered as Title Appeal No.11/2025, the said learned Court had passed a conditional order dated 19.12.2025, by admitting the appeal for hearing, but making it subject to condition that appellant is to pay arrear rent as well as enhanced rent @ 10% every 2 (two) years and cost of the suit as per the judgment and decree of the learned trial Court within 19.02.2026. Aggrieved by the said conditional order, the respondent approached this Court by filing an application under Article 227 of the Constitution of India, read with Section 115 and Section 151 of CPC and this Court, by order dated 22.04.2026 passed in CRP(IO)/131/2026, set aside the conditions attached with the admission of the appeal and the matter was remanded back to the learned Appellate Court. In the meantime, the respondent in connection with Title Appeal No.11/2025, also filed a petition under Order XLI Rule 5 CPC which was registered as petition no. 980/2025 dated 17.12.2025, praying for stay of the execution, operation and effect of the judgment and decree dated 22.08.2025 in T.S. No.20/2014 and the said learned Court by an order dated 19.05.2026 stayed the execution, operation, and effect of the said judgment and decree dated 22.08.2018. 6. The grievance of the petitioner expressed in this application filed under Article 227 of the Constitution of India is that the requirement Order XLI Rule 5 is to ensure that a security is taken, so that the decree for recovery of arrear rent would be satisfied. Therefore, the learned counsel for the petitioner has submitted that as per requirement of Order XLI Rule 5(3)(c), security was required to be taken from the respondent for performance of such decree or order as ultimately would be binding on him. Accordingly, it is Page No.# 4/5 submitted that as the impugned order dated 19.05.2026, passed by the learned Additional District Judge, Jorhat in T.A. No.11/2025, not requiring any security to be provided was mechanically passed and therefore, interference with the said order is prayed for. 7. Though the learned senior counsel for the respondent has opposed the prayer on the ground that there is already order of this Court dated 22.04.2026, passed in CRP(IO)/131/2026, as the conditional admission was interfered with there would be no requirement to ask the respondent to deposit security. 8. In this regard, the Court is of the considered opinion that as there is a statutory requirement which envisages security to be given by the applicant seeking stay of the execution for specific performance of decree or order that may ultimately be binding on him and on an appreciation of the judgment and decree dated 22.08.2025, passed in T.S. No.20/2014, it is seen that there is a decree for payment of the arrear rent as well as enhanced rent @ 10% in every 2(two) years and cost of the suit, it would be necessary for the learned First Appellate Court to take into account the provisions of Sub-Rule 5(2) and 5(3) of Order XLI Rule 5 CPC. In that view of the Court is of the considered opinion that as the requirement of security was not gone into by the learned First Appellate Court, it would be appropriate that the matter relating to order dated 19.05.2026, passed by the learned Additional District Judge, Jorhat, in T.A. No.11/2025 be remanded back to the said learned Court. 9. On the matter being remanded, leave is granted to the petitioner to move an appropriate application before the learned First Appellate Court requiring security in the manner as Sub-Rule 3 (c) and 5 of envisaged under Page No.# 5/5 Order XLI, Rule 5 CPC. On such application being made, it would be open to the respondent to submit an objection, if so advised, and the learned First Appellate Court i.e., the Court of learned Additional District Judge, Jorhat, shall pass appropriate orders on such application filed by the petitioner. 10. Accordingly, it is provided that the order dated 19.05.2026, shall be no bar for the learned First Appellate Court to pass appropriate orders, if any such application, as indicated hereinbefore is filed. 11. This application stands partly allowed to the extent as indicate above. JUDGE Comparing Assistant