QUAZI TOUFIQUR RAHMAN Vs. MST. NURBANU BIBI
HIGH COURT OF GAUHATI
Quazi Toufiqur Rahman
Mst. Nurbanu Bibi
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M.C. Pathak, C.J. -
(1.) BY this petition under Article 227 of the Constitution of India read with Section 115 of the Code of Civil Procedure, the petitioner has prayed for quashing the order dated 20 -11 -1974 passed by the learned Sadar Munsif, Gauhati In Title Suit No. 141 of 1969 by which the execution of the Decree in Title Suit No. 52 of 1964 has been stayed till decision of the Title Suit No. 141 of 1969 pending in the Court.
(2.) THE facts leading to this revision petition may be, briefly stated as follows: - Petitioner Quazi Toufiqur Rahman filed as plaintiff Title Suit No. 52 of 1964 on 27 -3 -1964 against opposite party Mst. Nurbanu Bibi as defendant. Title Suit No. 52 of 1964 was filed for ejectment of the defendant -opposite party as a tenant in respect of the suit land. The defendant -opposite party filed written statement in Title Suit No. 52 of 1964 on 30 -9 -1964 but the suit was decreed ex parte on 30 -11 -1965 for default of the defendant -opposite party. An application for setting aside the ex parte decree was filed by the defendant -opposite party and that petition was registered as Misc. Case No. 4 of 1965 and in due course the Misc. Case was allowed and the ex parte decree was set aside and the Title Suit No. 52 of 1964 was restored to file. Thereafter Title Suit No. 52 of 1964 was decreed ex parte on 14 -11 -1967 for the second time. The defendant -opposite party filed another application for setting aside the ex parte decree which was numbered as Misc. Case No. 19 of 1967. But the said Misc. Case was again dismissed for default on 14 -2 -1968 and the application for revival of the petition was also dismissed. Consequently the ex parte decree dated 14 -11 -1967 in Title Suit No. 52 of 1964 for ejectment of the defendant -opposite party as a tenant has stood effective. Thereafter the decree holder -petitioner put the decree in Title Suit No. 52 of 1964 into execution in Title Execution Case No. 13 of 1969 against the judgment -debtor/opposite party.
(3.) DURING the pendency of the Title Execution Case No. 13 of 1969 the judgment -debtor opposite party Mst. Nurbanu Bibi has filed Title Suit No. 141 of 1969 against the decree -holder petitioner Quazi Toufiqur Rahman for a declaration that defendant Quazi Toufiqur Rahman is not entitled to obstruct and/or interfere with the possession of the plaintiff Musstt. Nurbanu Bibi in respect of the suit land in Title Execution Case No. 13 of 1969 which is for execution of the fraudulent decree in Title Suit No. 52 of 1964. In Title Suit No. 141 of 1969 the plaintiff -opposite party Mustt. Nurbanu Bibi also filed an application under Order 39. Rules 1 and 2. Civil Procedure Code, praying for restraining the defendant -petitioner Quazi Toufiqur Rahman from proceeding with Title Execution Case No. 13 of 1969. The application for injunction was rejected by the Court by order dated 18 -8 -1971 passed in Title Suit No. 141 of 1969. Against the order dated 18 -8 -1971 rejecting the application for injunction the plaintiff -opposite party preferred a Misc. Appeal before the learned Assistant District Judge who rejected the Misc. Appeal by order dated 20 -3 -1972.;
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