Judgment · High Court

Heard Mr. R. Dutta, learned counsel for the petitioner. Also heard Mr. T . J. Mahanta, learned counsel for the respondent. This application under article 115 read with Section 151 CPC and Article 227 of the Constitution of India is filed against the order dated 11.07.2012 pa ssed by the learned Munsiff No.1, Jorhat in Title Execution Case No. 17/96, reje cting the Petitioner/ judgment- debtor’s petition questioning the locus standi o f the decree-holder/ respondent to continue with the Execution Case. The suit filed by the predecessor-in-interest of the respondent being Title Suit No. 15/86 was decreed on 30.06.92 for recovery of khas possession by evicting t he defendants from suit land. The decree was affirmed on 03.08.1996 by the learn ed First Appellate Court in Title Appeal No. 11/92. The second appeal preferred by the defendant No.2 (predecessor-in-interest of the petitioner) also came to b e dismissed by judgment and order dated 02.07.2004.

The plaintiff/decree-holder died after the second appeal was disposed of. The present respondent was pursuin g the Execution Case and on 15.07.11, the petitioner received a notice in the sa id Execution Case. On 09.04.2012, the petitioner deposited a sum of Rs. 2,612/- towards rent of the premises from 1982 and decretal amount. It is submitted by Mr. Dutta that the petitioner is a businessman and wh en the second appeal was disposed of by this Court, he was a minor. Prior to rec eiving the notice on 15.07.2011, he was not served with any other notice and the refore, he was unaware of the Execution Case. He submits that the decree-holder, who had expired in the meantime, was not substituted and therefore, the petitio n was filed questioning the maintainability of the Execution Case at the instanc e of the present respondent. It is also submitted by him that it is not indicate d by the respondent when the original decree-holder had expired.

The learned counsel, further, submits that the petitioner having deposit ed the rental amount, he is protected from eviction under the provisions of Assa m Non-Agricultural Urban Areas Tenancy Act, 1955, for short, the Act. Mr. Mahanta, on the other hand, submits that as far as execution case is concerned, there is no requirement of substitution in view of order 22 Rule 12. Placing reliance on Order 21 Rule 11 (2), the learned counsel submits that any person proved to the satisfaction of the Court to be acquainted with the facts o f the case can maintain an application for the execution of the decree. Learned counsel submits that the petitioner is also not entitled to protection, conferre d under Section 5 (3) of the Act, the judgment-debtor having not paid the entire amount payable under the decree within a period of 30 days from the date of the decree. It has also been argued by him that the petitioner was not a minor on t he date of passing of the judgment by this court in the second appeal and on his own admission, he was more than 20 years old at that relevant point of time.