JUDGMENT AND ORDER : Heard Mr. A.K. Dutta learned counsel appearing for the petitioner, Mr. S.K. Medhi, the learned Senior Advocate assisted by Mr. A. Das, learned counsel appearing for the respondent No.1 and also Mrs. Boro Bora, the learned Government Advocate, Assam for respondent No.2. 2. Common issues arise for consideration in both the cases. The petitioners in both the cases are husband and wife. The respondents are also common and, as such, with the consent of all sides, both matters are analogous to be taken up for hearing at the admission stage. 3. In challenge in these two applications under Article 227 of the Constitution of India are the two impugned orders dated 31.08.2013 passed by the learned Additional District Judge No.2, Kamrup, Guwahati in Money Execution (LA) Case No.60 of 2012 as well as Money Execution (LA) Case No.61 of 2012, thereby impleading the petitioner herein as one of the judgment debtors at the execution stage. 4. In or about the year 1990, the Central Government acquired land, for the establishment of Indian Institute of Technology, Guwahati (“IIT, Guwahati” for short). In connection with LA Case No.14/1991, the respondent No.1 in both these applications, amongst others, became entitled to land acquisition compensation. Dissatisfied with the award passed by the Collector, Kamrup (respondent No.2), Reference under Section 18 of Land Acquisition Act, 1894 were made and, inter-alia, 9 (nine) reference cases, being Reference Case No.6/1995, 7/1995 and 28/1998 to 34/1998 were registered. Reference Case No.7/1995 is related to the Respondent No.1 in CRP 24/2014 and Reference Case No. 6/1995 is related to the Respondent No.1 in CRP 25/2014. The learned Reference Court i.e. the Court of Ad-hoc Additional District Judge, Kamrup, Guwahati by a common judgment dated 02.07.2005 disposed of all the 9 (nine) reference cases, whereby the market value of the acquired land was enhanced. The petitioner i.e. IIT, Guwahati was not a party in both the above referred two reference cases. 5. The Director of IIT, Guwahati was served with a notice dated 11.01.2013 asking the said authority deposit an amount of Rs.1,53,000/- into the Executing Court on or before 14.02.2014, failing which the petitioner was informed that their properties including bank accounts will be attached and the decreetal amount would be realised as per provision of law. The petitioner has not complied with the said notice till date. The petitioner has not complied with the said notice till date. However, in the month of March 2015, the petitioner filed an objection before the learned executing court, whereby it was submitted that the petitioner was not a party in Reference Cases No.6/1995 and 7/1995 and that the Collector of Kamrup was the sole Opposite Party therein and therefore, the decree holder i.e. the respondent No.1 cannot legally implead the petitioner as judgment debtor in Money Execution Cases No.60/2012 and 61/2012 arising out of Reference Case Nos. 6/1995 and 7/1995. It was also submitted that the value of the acquired land would be paid to the State Govt. by the Ministry of Human Resource Development, Government of India and the petitioner, i.e. IIT, Guwahati had no role in the land acquisition process or its payment. It was further brought to the notice of the said learned court that in the proceedings of Money Execution Case No.34/2008 to 41/2008, notices of the execution cases were served on the petitioner but upon hearing the parties, the said learned Court of District Judge, Kamrup, Guwahati had held that the petitioner could not be brought before the Court in those execution cases as the petitioner was not a party in the connected reference cases. The petitioner prayed before the executing court that the name of the petitioner be struck down from the purview of Money Execution (LA) Case Nos. 60/2012 and 61/2012. The respondent No.1 in both these applications had filed their respective written objection against the petition filed by the petitioner. The learned Executing Court by passing two separate orders dated 31.08.2013, impugned herein, held that beneficiary department is not a necessary party and hence, in the original reference proceeding the petitioner was not made a party, however, in the exhibition stage they were made party for realisation of the decreetal amount and the petitioner is bound to pay the amount under the decree. The learned Executing Court placed reliance upon the provisions of Section 41 of the Land Acquisition Act, 1894 and, inter-alia, held that after going though the copy of standard agreement as prepared under the Rules, it is clear that the beneficiary department has to sign the agreement wherein they had to bind themselves to pay the amount of enhanced compensation with interest, if any, by reference Court and that the petitioner has to enter into an agreement by binding themselves to satisfy with the award made by the Reference Court. It was further held that the petitioner was not a party to the Reference cannot be ground for refusal to pay the amount and moreover, after appearing the petitioner had not challenged the decree as nullity and merely taken a stand that they are not bound to pay the decreetal amount, as such the objection filed by the IIT, Guwahati had no legs to stand. Accordingly, the objection field by the petitioner was dismissed. Thus, these present challenge. 6. Affidavits have been exchanged. In CRP 24/2014, the respondent No.1 had filed has affidavit on 23.03.2017. The petitioner has filed rejoinder affidavit on 24.04.2017 and has also filed another affidavit on 17.07.2017. In CRP 25/2014, the petitioner has filed an affidavit on 17.07.2017. As issues are common, the matter has been heard on the basis of materials on record in both applications. The respondent No.1 by filing an affidavit on 23.03.2017 in CRP 24/2014, has brought on record that while the petitioner has paid the award passed by the learned Reference Court being Reference Case No.19/1997, 73/1995, 72/1995, 63/1996, 21/2001, 23/2001, 24/2001 and 25/2001, but the petitioner has taken a contradictory stand in respect of the Reference Case Nos.6/1995 and 7/1995 pertaining to the respondent No.1, which is alleged to be an absurd stand. Reference is also made therein to the provisions of Order 21 Rule 46-A CPC. By filing an affidavit on 17.07.2017, the petitioner has brought on record the order dated 27.08.2009, passed by the Court of learned District Judge, Kamrup, Guwahati in Money Execution Case No. 34/2008 to 41/2008, by which the decree holders therein were directed to take steps for execution of award against the Collector only as the petitioner i.e. IIT, Guwahati was not a party in the Reference cases. 7. 7. The learned counsel for the petitioner has submitted that the petitioner is a State owned Educational Society and its affairs are governed by the Government of India through its Ministry of Human Resource Development and there is a body constituted to manage its affairs. It is submitted that in accordance with the scheme of the Land Acquisition Act, 1894, the petitioner would be receiving a demand from the Collector, Kamrup and the said demand would be sent to the Ministry of Human Resource Development, Government of India and on receipt of funds and/or approval/sanction, the awarded amount would be deposited before the Collector, Kamrup and/or before the learned executing court. It is submitted that as the petitioner was not a party in any of the reference cases and, as such, it was illegal to array them as judgment debtors by impleading them for the first time in the proceedings of the execution cases, i.e. Money Execution Case No.60/2012 and Money Execution Case No.61/2012. The specific stand of the learned counsel for the petitioner is that they have not challenged the award passed by the Reference Court because in this case, as the land was acquired at the behest of the Central Government, only the Government of India through its Ministry of Human Resource Development would be the aggrieved party. Thus, it is submitted that the role of the petitioner in this case was only to act like a postman and its duty was only limited to forward the claim made by the Collector, Kamrup to the Ministry of Human Resource Development, Government of India and whatever money is granted/ approved and/or sanctioned by the said authority would be paid for satisfaction of the award. In this regard heavy reliance is placed on the rejoinder affidavit filed by the petitioner on 24.04.2017, wherein demand letters dated 04.04.2008 and 05.04.2010 issued by the Secretary/ Deputy Secretary to the Government of Assam, Higher Education (Tech) Department and letter dated 23.09.2010 by the Under Secretary to the Government of India, Ministry of Human Resource Development, New Delhi, by which the approval of the Ministry for payment of Rs.29,18,798/- as decreetal amount with interest upto 04.08.2008 and cost in Money Execution Case No.34/2008 to 41/2008 are enclosed. It is further submitted that in the present case in hand the learned executing court has taken contradictory stands because in one set of cases i.e. Money Execution Case No. 34/2008 to 41/2008, the petitioner was absolved by order dated 27.08.2009 on the ground that the petitioner was not party in the reference cases and in the present case, by the impugned order in spite of the fact that the petitioner was not a party in the reference case, the petitioner is allowed to remain as a judgment debtor by impleading them at the execution stage. 8. Per contra, the learned Senior Counsel for the respondent No.1 has referred to the various provisions of the Institutes of Technology Act, 1961 to project that the petitioner maintains a fund for the Institute under section 22 of the Act and therefore, it is not permissible for the petitioner to claim that it does not have its own funds and they are dependent on the approval/ grants by the Government of India as projected. It is further submitted that there was no infirmity in impleading the petitioner as a judgment debtor in the execution cases. It is further submitted that the petitioner has not denied the correctness of the finding recorded by the learned executing court in the impugned order to the effect that there was an agreement under section 41 of the Land Acquisition Act, 1894 by which the petitioner, as a beneficiary department, was required to honour any award/ decree passed by the learned Reference Court and, as such, being indebted to the Government of Assam/ Collector, Kamrup by virtue of the said Agreement, it was perfectly lawful for the respondent No.1 as well as for the learned executing court to proceed against the petitioner for realisation of the decreetal sum and interest which has accrued thereon and heavy reliance was placed on the provisions of Order 21 Rule 46A and Section 41 of the Land Acquisition Act, 1894. It is further submitted that the respondent No. 1 in CRP 24/2014 case is aged about 74 years old and his wife, who is the petitioner in CRP 25/2014 is also a senior citizen and it is submitted that the land in this case was acquired vide LA Case No.14/1991 and therefore the respondent No.1 in both cases are waiting for last 26 years for receiving their due land acquisition compensation and, as such, the petitioner ought to have shown their bona fide in getting the requisite funds and depositing the same before the learned executing court for satisfaction of the decreetal amount, when no part of the award has been challenged and the award passed in other analogous cases i.e. Execution Case No. 34/2008 to 41/2008 were fully satisfied. It is submitted that withholding of the compensation in the case of respondent No.1 was ex facie mala fide. It is also submitted that in the rejoinder affidavit filed on 24.04.2017 by the petitioner, it can be seen that the petitioner had got approval for payment of Rs.29,18,798/- within 4 (four) months because in the said letter, reference has been made to the letter dated 23.09.2010 (Annexure-5-C), whereby the Ministry of Human Resource Development had referred to the letter No. AD/02/96/VOL II/2254 dated 14.05.2010 by the Registrar, IIT Guwahati. By referring to the same, it is submitted by the learned Senior Counsel for the Respondent No.1 that in the present case in hand, the petitioner is contesting the two execution case since the month of March, 2013 and till date, the petitioner has not produced any document to demonstrate before this Court that the petitioner had taken any effort to get approval for release of Rs.1,53,000/- (Rupees One lakh fifty three thousand only) in Money Execution Case No.60/2012 and a sum of Rs.3,72,000/- (Rupees Three lakh seventy two thousand only) in Money Execution Case No.61/2012. Therefore, it is submitted that the petitioner has acted mala fide in respect of the claim of the respondent No.1 in both the cases with a view to deprive the petitioners of their legitimate claim against award passed by the learned Reference Court. Hence, the learned Senior counsel for the respondent No.1 has prayed for dismissal of the present two applications. 9. The learned Government counsel has not taken any stand in the present case and has not advanced any argument in the matter. Hence, the learned Senior counsel for the respondent No.1 has prayed for dismissal of the present two applications. 9. The learned Government counsel has not taken any stand in the present case and has not advanced any argument in the matter. No affidavit in opposition has been filed, which, according to this court shows a total apathy on part of the Collector, Kamrup, to expedite payment of land acquisition compensation to the respondent No.1. In the absence of any affidavit by the Collector, Kamrup, this court expresses its apprehension that no steps has been taken as on date by the said authority to obtain land acquisition compensation from the Govt. of India and at this stage, this Court can only hope that the Collector, Kamrup, is destined to wake up from his deep slumber in this case only after execution process is served on them. 10. This court is of the view that it is too well settled that the body on whose behalf the land is acquired is not just a necessary party but is also a proper party before the Reference Court, and it is also no longer res-integra that by not giving them notice either at the stage of fixing compensation by the Collector or by the Reference Court, it affects their rights and therefore, the body on whose behalf the land is acquired must be impleaded as a party in reference proceeding. If one requires any authority on the same the following cases may be referred to:- a. U.P. Awas Evam Vikas Parishad Vs. Gyan Devi, (Constitution Bench Judgment of the Hon’ble Supreme Court), (1995) 2 SCC 326; b. Abdul Rasak and others Vs. Kerala Water Authority and others, (2002) 3 SCC 228 ; c. N.T.P.C Ltd Vs. State of Bihar, (2004) 12 SCC 96 . 11. Coming to the present case in hand, it is seen that the petitioner was not a party in both the concerned reference cases, which is evident from the perusal of the judgment dated 02.07.2005, passed by the learned Reference Court i.e. Court of Ad-hoc Additional District Judge, Kamrup, Guwahati in Reference Case Nos. 6/1995, 7/1995, and 28/1998 to 34/1998. 11. Coming to the present case in hand, it is seen that the petitioner was not a party in both the concerned reference cases, which is evident from the perusal of the judgment dated 02.07.2005, passed by the learned Reference Court i.e. Court of Ad-hoc Additional District Judge, Kamrup, Guwahati in Reference Case Nos. 6/1995, 7/1995, and 28/1998 to 34/1998. Therefore, this court is inclined to hold that as the petitioner was not a party in both the concerned reference cases, under no circumstances the petitioner i.e. IIT, Guwahati can be impleaded in the as a judgment debtor for the first time in the execution stage. 12. On a bare perusal of Form No. 6 of Appendix-E of the Civil Procedure Code which is the prescribed form for application for execution of decree under Order XXI Rule 11(2) CPC, the said form would show that the name of parties are contained in Column-2 of the execution application, and parties are referred as plaintiffs and defendants. There is no provision under Order XXI CPC or elsewhere in the said Code for impleading a non-party in the suit as a judgment debtor at the execution stage. Moreover, the provisions of Section 41 of the Land Acquisition Act, 1984 also does not empower the executing court to implead the beneficiary as a judgment- debtor at the execution stage and to execute the decree after impleading such party for the first time at the execution stage. The provisions of Section 41 of the Land Acquisition Act, 1894, on which the learned Executing Court as well as the learned Senior Counsel for the respondent No.1 had relied upon is reproduced below:- “41. Agreement with appropriate Government. The provisions of Section 41 of the Land Acquisition Act, 1894, on which the learned Executing Court as well as the learned Senior Counsel for the respondent No.1 had relied upon is reproduced below:- “41. Agreement with appropriate Government. If the appropriate Government is satisfied after considering the report, if any, of the Collector under section 5A, sub-section, or on the report of the officer making an inquiry under section 40 that the proposed acquisition is for any of the purposes referred to in clause (a) or clause (b) of sub-section (1) of section 40, it shall require the Company to enter into an agreement with the appropriate Government, providing to the satisfaction of the appropriate Government for the following matters, namely: (1) the payment to the appropriate Government of the cost of the acquisition; (2) the transfer, on such payment, of the land to the Company; (3) the term on which the land shall be held by the Company; (4) where the acquisition is for the purpose of erecting dwelling- time within which, the conditions on which and the manner in which the dwelling-houses or amenities shall be erected or provided; (4A) where the acquisition is for the construction of any building or work for a Company which is engaged or is taking steps for engaging itself in any industry or work which is for a public purpose, the time within which and the conditions on which, the building or work shall be constructed or executed; and (5) where the acquisition is for the construction of any other work the time within which and the conditions on which the work shall be executed and maintained, and the terms on which the public shall be entitled to use the work.” 13. From the above it would appear as per the provisions of section 41(1) of 1894 Act, the petitioner is bound to make payment to the appropriate Government i.e. Govt. of Assam, the Cost of Acquisition, which includes the award passed by the learned Reference Court. Therefore, the payment due to be paid by the petitioner to the State of Assam through the Collector, Kamrup appears to be in the nature of contractual dues, which is enforceable by the State of Assam and not by the respondent No.1 in both the cases. Therefore, the payment due to be paid by the petitioner to the State of Assam through the Collector, Kamrup appears to be in the nature of contractual dues, which is enforceable by the State of Assam and not by the respondent No.1 in both the cases. Therefore, this Court in unable to accept the argument advanced by the learned senior counsel for the respondent No.1 that the execution can be proceeded against the petitioner by treating the petitioner as a “garnishee” as envisaged under the provisions of Rule 46-A of Order XXI CPC. The said provision is quoted below:- “46A. Notice to garnishee (1) The Court may in the case of a debt (other than a debt secured by a mortgage or in charge) which has been attached under rule 46, upon the application of the attaching creditor, issue notice to the garnishee liable to pay such debt, calling upon him either to pay into Court the debt due from him to the judgment-debtor or so much thereof as may be sufficient to satisfy the decree and costs of execution, or to appear and show cause why he should riot do so. (2) An application under sub-rule (1) shall be made on affidavit verifying the facts alleged and stating that in the belief of the deponent, the garnishee is indebted to the judgment-debtor. (3) Where the garnishee pays in the Court the amount due from him to the judgment-debtor or so much thereof as is sufficient to satisfy the decree and the costs of the execution, the Court may direct that the amount may be paid to the decree-holder towards satisfaction of the decree and costs of the execution.” 14. (3) Where the garnishee pays in the Court the amount due from him to the judgment-debtor or so much thereof as is sufficient to satisfy the decree and the costs of the execution, the Court may direct that the amount may be paid to the decree-holder towards satisfaction of the decree and costs of the execution.” 14. Moreover, from the contents of letter No.F.No.6-6/2007TS.1 dated 23.09.2010 issued by the Under Secretary to the Government of India, Ministry of Human Resource Development, New Delhi (Annexure-5-C to the rejoinder affidavit of the petitioner filed on 24.04.2017), merely because the Government of India had released the award and interest in 8 execution cases bearing No. Money Execution Case No.34/2008 to 41/2008, this Court is unable to treat the petitioner as a judgment debtor in those execution cases in view of the order dated 27.08.2009 passed by the learned District Judge, Kamrup, Guwahati in those 8 execution cases, whereby decree holders therein were directed to take steps for execution of award against the Collector only as the petitioner i.e. IIT, Guwahati was not a party in the said reference cases. 15. In view of the discussion above, this Court finds that the challenge to the impleading of the petitioner as a judgment debtor in Money Execution (LA) Case No. 60/2012 and 61/2012 by the impugned order dated 31.08.2013 to be sustainable on facts and in law. Accordingly, both the said orders dated 31.08.2013 passed by the learned Court of Additional District Judge No.2, Kamrup, Guwahati in Money Execution (LA) Case No.60 of 2012 as well as Money Execution (LA) Case No.61 of 2012 are set aside and quashed. The petitioner shall no longer be treated as a judgment debtor in connection with these two above execution cases. Resultantly, the execution proceeding shall continue only against the Collector, Kamrup. 16. The petitioner shall no longer be treated as a judgment debtor in connection with these two above execution cases. Resultantly, the execution proceeding shall continue only against the Collector, Kamrup. 16. However, considering the fact that the petitioner in CRP No.24/2014 is 74 years old and his wife, who is the respondent No.1 in CRP No.25/2014, must also be a senior citizen by now, this Court can only hope and trust that the petitioner would show its magnanimity to urgently and as expeditiously as possible, obtain the sanction and/or approval of the competent authority for disbursing the decreetal sum of Rs.1,53,000/- (Rupees One lakh fifty three thousand only) in Money Execution Case No.60/2012 and Rs.3,72,000 (Rupees Three lakh seventy two thousand only) in Money Execution Case No.61/2012 by taking into account that both the respondent No.1 are awaiting such amount of land acquisition compensation for last 26 years as of now. This observation is merely advisory and not to be treated as a direction issued by this Court. However, this observation shall not preclude the respondent No.1 in both cases to take steps in connection with their respective execution cases as may be permitted in accordance with law. 17. The parties who are duly represent by the learned counsels shall appear before the learned Executing Court i.e. the Court of Additional Judge No.2, Kamrup Metropolitan, Guwahati on 06.11.2017 without any further notice of appearance and by producing a certified copy of this order, shall seek further instructions from the said learned Court.