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2018 DIGILAW 1226 (GAU)

NALINI GOGOI v. SIDHANT SAHEWALLA

2018-08-20

KALYAN RAI SURANA

body2018
JUDGMENT : KALYAN RAI SURANA, J. 1. Heard Mr. S. Borthakur, the learned advocate for the petitioner as well as Mr. P. Bora, the learned advocate for the respondent No.1. 2. By this revision under Article 227 of the Constitution of India read with Section 115 CPC, the petitioner has assailed the order dated 19.07.2018, passed by the learned Civil Judge, Sivasagar in Misc. (J) Case No. 67/2018 arising in T. Ex. Case No. 3/2001. 3. The respondent No.1 had entered appearance by filing vakalatnama. Hence, the petitioner as well as the respondent No.1 have been heard at the motion stage itself. The respondents No.2 and 3 are found to be not necessary for the purpose of deciding the present challenge. Hence, issuance of notices on the said respondents No.2 and 3 is exempted. 4. The brief introductory facts are that the petitioner is a senior citizen aged about 70 years old. It is projected that after following all formalities of obtaining NOC for sale from the competent authority, she had purchased a plot of land from one Rajendra Prasad Bora, who was the owner of the suit land measuring 1 katha- 10 lechas, covered by Dag No. 172 of P.P. Patta No. 11 of Village- Raichai, Mouza- Nitaipukhuri, under Demow Revenue Circle by virtue of Sale Deed, bearing Deed No. 374 dated 06.04.2004, registered before the Office of the Sub- Registrar, Sivasagar. Since then, she has been occupying the said land by constructing house thereon, without any objection from any quarter. It is projected that a few months prior to 24.01.2017, the Civil Nazir and some other persons started to visit the suit land in connection with Misc. (J) Case No. 25/2015, and she became aware for the first time that the said plot of land which was purchased by her was sold in Court conducted auction to the respondent. On enquiry, the petitioner found out that her vendor was one of the defendants in a defamation suit, being M.S. No. 23/1992, which was decreed against her vendor, jointly and severally with others for a sum of Rs. 10.00 Lakh with interest at the rate of 18%. Accordingly, the property of the said vendor measuring 3 bigha- 3 katha, inclusive of the suit land was attached by the learned Civil Judge (Senior Division), Sivasagar in connection with execution proceedings, being M.Ex. Case no. 3/2001. 10.00 Lakh with interest at the rate of 18%. Accordingly, the property of the said vendor measuring 3 bigha- 3 katha, inclusive of the suit land was attached by the learned Civil Judge (Senior Division), Sivasagar in connection with execution proceedings, being M.Ex. Case no. 3/2001. After newspaper publication of auction notice, the said property was sold in public auction by the learned executing Court. Various auction purchasers had made their respective bids for 3 bigha- 3 katha land, which is inclusive of the suit land. The auction bids were accepted by the learned executing Court by order dated 16.11.2004, directing record to be put up after 2 (two) months for confirmation of sale and for issuing sale certificate. 5. It is projected that after the suit land was attached, on 09.07.2001, the judgment debtors had had filed a petition No. 1599/2001 under O.XXI Rule 58 CPC, amongst others, claiming that his property was attached by order dated 16.09.1996 in Crl. Misc. Case No. 775(K)/1996, passed by the learned Sessions Judge, Kamrup, Guwahati. However, not getting any favourable orders, the judgment debtor had filed W.P.(C) No. 315/2005 before this Court to challenge orders dated 06.08.2004, 19.10.2004 and 16.11.2004, wherein it was also prayed that his petition No. 1599/2001 should be disposed of. The writ petition was allowed by order dated 26.10.2009. The learned executing Court had rejected the said petition No. 1599/2001 by order dated 08.07.2011. The said order was challenged by the judgment debtor by filing CRP 147/2012, wherein, this Court had issued direction not to finalize the sale of the attached properties till disposal of CRP 147/2012. In the ensuing auction bidding process, the respondent had purchased the said property at a bid amount of Rs. 50,35,000/-. However, this Court had dismissed CRP No. 147/2012 by order dated 24.03.2015. Accordingly, by order dated 13.05.2015, the auction sale made on 08.12.2014 was confirmed and Sale Certificate was issued and its copy was sent to the Deputy Registrar, Sivasagar for information and necessary action. Accordingly, Money Execution Case No. 3/2001 was closed. 6. The respondent, who was the auction purchaser, filed a petition before the learned Civil Judge, Sivasagar under the provisions of Order XXI Rule 95 CPC, which was registered as Misc. (J) Case No. 25/2015 for taking possession of land measuring 3 bigha 3 katha. Accordingly, Money Execution Case No. 3/2001 was closed. 6. The respondent, who was the auction purchaser, filed a petition before the learned Civil Judge, Sivasagar under the provisions of Order XXI Rule 95 CPC, which was registered as Misc. (J) Case No. 25/2015 for taking possession of land measuring 3 bigha 3 katha. In the said case, the learned executing Court, by order dated 20.11.2015, directed the Civil Nazir to carry out the execution with the help of Lat Mandal, Kanungo and police force. 7. It is projected that in connection with the said order, when the Civil Nazir and others started to visit the suit land, the petitioner became aware of the back-ground and accordingly, she filed an objection under Section 47 CPC read with Order XXI Rule 58 and Section 151 CPC, claiming title and praying for staying the execution. The said petition was registered as Misc. (J) Case No. 25/2016. However, the learned Civil Judge, Sivasagar by order dated 24.01.2017 had rejected the said Misc. (J) Case No. 25/2016. Aggrieved by the said order, the petitioner had preferred an appeal before the learned District Judge, Sivasagar, which was registered as Misc. Appeal No.10/2018. However, as there was some delay, the said appeal was accompanied by an application under Section 5 of the Limitation Act, 1963 for condonation of the delay, which was registered as Misc. (J) Case No. 14/2018. By order dated 28.06.2018, the appeal was kept in abeyance. 8. The petitioner had filed an application before the Court of learned Civil Judge, Sivasagar under Order 41 Rule 5(2) read with Section 151, which was registered as Misc. (J) Case No. 67/2018, inter-alia, for (1) staying the execution of order dated 24.01.2017 passed in Misc. (J) Case No. 25/2016, (2) to stay the execution process of Money Execution Case No. 3/2001, and (3) execution of process under Misc. (J) Case No. 25/2015. The said petition i.e. Misc. (J) Case No. 67/2018 was rejected by the learned Civil Judge, Sivasagar. The said order is in challenge in this application. 9. The learned advocate for the petitioner has submitted that the petitioner was a bona fide purchaser of the suit land measuring 1 katha- 10 lechas, without any notice of attachment or court proceedings and moreover, she was also not aware of the auction sale of the said land by the learned Court of Civil Judge, Sivasagar. 9. The learned advocate for the petitioner has submitted that the petitioner was a bona fide purchaser of the suit land measuring 1 katha- 10 lechas, without any notice of attachment or court proceedings and moreover, she was also not aware of the auction sale of the said land by the learned Court of Civil Judge, Sivasagar. It is further submitted that she had purchased the land described in the Schedule of her petition after observing all formalities and after obtaining NOC from the competent authorities for purchasing the said land. Hence, till the matter is decided, the petitioner is entitled to protection from eviction. It is submitted that at such a prime age, the petitioner has nowhere else to go at such fag end of her life with her belongings and family members. Moreover, it is submitted that the petitioner has constructed houses thereon, from which she cannot be evicted without due process of law. 10. By referring to the order dated 06.08.2004, it is submitted that by the said order, the learned executing Court had taken note of the sale made by the judgment debtors and, as such, auction sale of only the remaining land was allowed. Hence, the petitioner is duly protected by the said order and, as such, the petitioner has a prima facie case to be tried because the Court could not have auctioned the land sold by the judgment debtor. All other points raised in this application have been pressed. 11. Per contra, the learned advocate for the respondent has submitted that the admitted case of the petitioner is that the appeal was barred by limitation and, as such, unless the delay is condoned, there is no infirmity in the order impugned herein, rejecting the prayer made by the petitioner in Misc. (J) Case No. 67/2018. It is also submitted that as the petitioner had approached the appellate Court, the learned Civil Judge, Sivasagar had rightly rejected the prayers made in Misc. (J) Case No. 67/2018. 12. Having heard the learned advocates for the petitioner and respondent No.1, perused the materials available on record. Before examining the plea of the petitioner, it would be relevant to refer to the provisions of Order XLI Rule 3A CPC and Order XLI Rule 5(2) CPC, which are reproduced herein below:- Order XLI Rule 3A. (J) Case No. 67/2018. 12. Having heard the learned advocates for the petitioner and respondent No.1, perused the materials available on record. Before examining the plea of the petitioner, it would be relevant to refer to the provisions of Order XLI Rule 3A CPC and Order XLI Rule 5(2) CPC, which are reproduced herein below:- Order XLI Rule 3A. Application for condonation of delay- (1) When an appeal is presented after the expiry of the period of limitation specified therefor, it shall be accompanied by an application supported by affidavit setting forth the facts on which the appellant reliefs to satisfy the Court that he had sufficient cause for not preferring the appeal within such period. (2) If the Court sees no reason to reject the application without the issue of a notice to the respondent, notice thereof shall be issued to the respondent and the matter shall be finally decided by the Court before it proceeds to deal with the appeal under rule 11 or 13, as the case may be. (3) Where an application has been made under sub-rule (1), the Court shall not make an order for stay of execution of the decree against which the appeal is proposed to be filed so long as the Court does not, after hearing under rule 11, decide to hear the appeal." Order XLI Rule 5(2): (2) Stay by Court which passed the decree.- Where an application is made for stay of execution of an appealable decree before the expiration of the time allowed for appealing therefrom, the Court which passed the decree may on sufficient cause being shown order the execution to be stayed. 13. From a bare reading of the said provisions, it appears that there is a bar created under Rule 3A of Order XLI for passing any interim order in connection with appeal unless the delay is condoned. Moreover, it is seen from the language used in Clause (2) of Rule 5 of order XLI CPC that till the period provided for appeal the Court passing the decree may stay the operation of the decree. Thus, in the opinion of this Court, such period cannot be extended after the time allowed for preferring the appeal has lapsed or after the appeal has actually been filed before the learned appellate Court. 14. Thus, in the opinion of this Court, such period cannot be extended after the time allowed for preferring the appeal has lapsed or after the appeal has actually been filed before the learned appellate Court. 14. Nothing has been pointed out to show before this Court that merely because the appeal is accompanied by an application for condonation of delay, there is no appeal on record. Therefore, in the absence of anything to the contrary, it must be construed that the application for condonation of delay is accompanied by the Memo of Appeal and, as such, irrespective of the fact whether the appellate Court is actually in seisin of the appeal or not, but nevertheless, the appeal must be treated to have been filed and is in the record of the learned appellate Court. Therefore, the natural fallout would be that the trial and/or executing Court becomes a functus officio and would have no power to pass any order of stay of the decree or order, which would amount to over-reach of its powers, as such, if any orders are passed by lower courts, beyond the mandate of Order XLI Rule 5(2) CPC, i.e. after the period of appeal has expired or after the appeal has actually been preferred, such orders would be in exercise of jurisdiction not vested in it by law. 15. Hence, in view of the discussions above, this Court does not find any infirmity or jurisdictional error in the impugned order dated 19.07.2018 passed by the learned Civil Judge, Sivasagar, as such, this revision fails and the same stands dismissed without issuing any notice. The parties are left to bear their own cost. 16. It is made clear that the learned Civil Judge, Sivasagar as well as the learned District Judge, Sivasagar shall not construe any observation made herein to be a finding of fact in so far as the merit of the stand of the parties are concerned, and the observations made herein are only for the purpose of deciding this revision.