High Court · 2012

The petitioner had filed a suit numbered as Money Suit No. 68 of 1992 in the Court of Assistant District Judge, Jorhat against one Sujit Kumar Singha for recovery of Rs.2,40,000/- (Two lakhs forty thousand) for non- paymen t of hire charges and failure to return 1200 sq.ft. of shuttering plates given to the defendant on hire. The defendant had filed a written statement and the pl aintiff had examined himself as PW-1. The defendant did not cross-examine the pl aintiff and also did not adduce any evidence. The learned Trial Court by the jud gement and order dated 14-08-1996 decreed the suit for recovery of Rs. 2,39, 850 /- from the defendant with cost of Rs. 150/- and with late charges @ 10 paise on ly daily per sq.ft of the shuttering plates from the date of the suit till full recovery. The petitioner had filed Money Execution Case No. 28 of 1997 in the Court of learned Civil Judge (Senior Division), Jorhat and the said case was transferred to the Court of learned Civil Judge (Senior Division), Golaghat for execution of the decree and the same was registered as Money Execution No. 01 o f 2003. By the impugned order dated 12-08-2005, as has been noted earlier, the e xecution case was dismissed. Order dated 12-08-2002 is reproduced in its entiret y : (cid:28) Both sides are duly present. The D.H. filed a petition, prayin g for an adjournment on the ground that the D.H. has gone to Delhi. This is an old pending case dating back to the year 1997. The Execution was instituted on 30-09-97. The J.D. Subhrajit Kr. Singha contested t his proceeding on the ground that he is not bound by the decree because, the dec ree was passed against Sujit Kr. Singha. I have gone through the case record of M.S. No. 68/92. It appears that the D.H. filed the said suit against Sujit Kr. S ingha of Hotel Kapil Moon, New Cross Road, Golaghat Town. When notice of the exe cution case was served upon the J.D., he appeared and put up a claim before this Court that his name is Subhrajit Kr. Singha and not Sujit Kr. Singha. The origi nal record of Money Suit, failed to show the other particulars of the person Suj it Kr. Singha. The plaintiff/D.H. simply filed the case against (cid:28)Sujit Kr. Singh a of Hotel Kapil Moon (cid:29), whereas Subhrajit Kr. Singha filed several documents, li ke School Admit Card, pass Certificate of D.R. College, Golaghat. Everything sho w that the person Subhrajit Kr. Singha contesting this case as J.D. is actually Subhrajit Kr. Singha. Till today, the D.H. has not been able to prove that this Subhrajit Kr. Singha is none other than Sujit Kr. Singha. On the above circumsta nces, the Execution is pending since 1997. Today, I am satisfied that the D.H. d oes not deserve adjournment as prayed for. I have heard the learned counsel for the D.H. On earlier occasio n also, the D.H. has been taking adjournment on different grounds. I do not find it a fit case to keep it pending. Hence, I dismissed the execution case today. The original record that was called from the Court of the learned Civil Judge, S r. Division, Jorhat be returned along with the decree. The execution case is dismissed on contest. (cid:29) From the perusal of the said order, it appears that decree holde r had failed to prove that Subhrajit Kr. Singha, who was served with the notice of the Execution case, and had contested the execution proceeding, is none other than Sujit Kr. Singha and the case was pending from 1997 as such. It also appea rs from the said order that decree holder was taking adjournment on different gr ounds. This application before this Court was filed on 14-03-2011, afte r almost five and half years after passing of the order dated 12-08-2005. The de lay in approaching this Court is sought to be explained by stating that he had n ot received any information of the case and on 07-05-2007, he had filed a petiti on before the learned District Judge, Golaghat, praying for an enquiry in the ma tter. It is stated that in the month of September (without mentioning the year), he came to know that the Money Execution Case No. 1 of 2003 has been lying in t he Court of learned Civil Judge, Jorhat. It is further stated that the petition filed by him for restoration of Money Execution No. 1 of 2002 was filed on 07-1 2-2010 which came to be dismissed by the learned Civil Judge, Jorhat by an order dated 14-12-2010. Though it has been stated that the petitioner had filed an application on 07-05- 2007 and a copy of the said application has been produced before this Court, the re is no official endorsement in the said petition. The attached registration sl ip also does not indicate conclusively that any such petition was addressed to t he learned District Judge. It is not understood why the petitioner could not hav e directly filed a petition before the Court. Be that as it may, in the said pet ition, it was averred that the learned Civil Judge, Golaghat had transferred the case to the Court of learned Civil Judge, Jorhat although, the execution case w as dismissed by then. Surely the learned Civil Judge, Jorhat could not have ente rtained the petition under Section 151 CPC for restoration of Misc. Execution C ase No. 1 of 2003 as the order was passed by the Civil Judge of another district . As the petitioner was not taking the requisite steps and had failed to establi sh that Subhrajit Kr. Singha was the same man as Sujit Kr. Singha against whom the suit was filed, the execution case was dismissed. The petitioner had approac hed this Court after long five and half years after passing of the impugned orde r without any acceptable explanation for such inordinate delay. In view of the above discussions, I find no merit in this applic ation and accordingly, the same is dismissed. Send down the case records.