Appellate Division Cases
(Civil)
PARTIES
Bangladesh Bank represented by the Governor Head Office, Motijheel, Dhaka
…………………Appellant
Vs
Mrs. Rana Awan and. Others ……………… Respondent
JUDGES
Md. RuhulAmin J
M. M. Ruhul Amin J
Md. Tafazzul Islam J
Date of Judgment
25th July 2004
The Code of Civil Procedure (V of 1908), 21 Rules and 52 and 56.
The Bangladesh Constitution, Articles 85. 88.
Whether the appellant is bound to pay the decreetal amount to the respondent No.l out of the Consolidated Fund without a separate instrument authorizing such payment (7)
Unless the Finance Minister, after consultation with Accountant General, otherwise directs in any case no money can be withdrawn from the Government Account without the written permission of the Treasury Officer or an officer of the Bangladesh Audit Department authorized in this behalf by the Accountant General (9)
Even in cases of expenditures charged on the Consolidated Fund by Clause (e) of Article 88 also in the present case, bill has to be introduced in Parliament to provide for appropriation out of the Consolidated Fund. The words “shall be regulated by an Act of Parliament “as expressed in Article 85 of the Constitution cannot be stretched so as to mean that the Code of Civil procedure is such an Act of the Parliament because the constitution was promulgated in the year 1972 while the code of Civil Procedure existed since 1908 and the words “shall be regulated” refers to further legislation and not to the Code of civil Procedure (12)
ADVOCATES
Shamim Klialed Ahmed Advocate, instructed b\ Mr. Abu Siddique, Advocateon-Record For the Appellant M.l.Farooqi, Senior Advocate (Mr.Mohsin Rashid, Advocate, with him
instructed by M. G. Bhuiyan, Advocate-on-Record For Respondent No. I Not represented Respondent Nos. 2-3
JUDGMENT
Md. Tafazzul Islam J: – This appeal by leave is against the judgment and order dated 7.7.1994 passed by the High Court Division in Civil Revision No. 758 of 1992 discharging the Rule. The above civil revision was filed calling in question the order dated 5.10.1991 passed by the learned Subordinate Judge (now Joint District Judge), First Court Dhaka in Money Execution Case No. 5 of 1979, rejecting the application dated 30.9.1991 filed by the appellant praying for withdrawal of the notices dated 3.3.1991 and 24.7.1991issued by the above executing Court under order 21 Rules and 52 and 56 of the Code of Civil Procedure.
2. The respondent No. 1 filed Title Suit No. 8 of 1997 in the Court of Subordinate Judge ( now Joint District Judge) First Court, Dhaka seeking decree for Tk. 2,15,374/- against the Ministry of Works and its Secretary, the respondent Nos. and 3 herein, and obtained ex-parte decree. In the above suit the appellant, Bangladesh Bank, was not made a party. Then on the prayer of the respondent No. 1 in money Execution Case No. 5 of 1979 the executing court by order dated 26.9.1990 attached the decreetal amount for satisfaction of the above ex-parte decree. The above decreetal amount having remained unsatisfied the executing Court by order dated 3.3.1991directed the appellant to keep the decreetal amount with it until further order and then by order dated 27.4.1991 also directed the appellant to deposit the attached decreetal amount into the account of the learned advocate for the respondent No. 1 Notice dated 3.3.1991 and 27.4.1991 were also issued by the executing court in terms of the above orders. Then the appellant, by letter dated 13.5.1991, requested the respondent Nos.2 and 3 to pay decreetal amount and by letter dated 15.5.1991 informed the executing Court about the above steps taken by the appellant. Thereafter, on 13.7.1991, the appellant having reeived a legal notice from the respondent No. 1 for compliance of above directions of the executing Court, sent reply dated 14.09.1991 and then filed an application dated 30.9.1991 to the executing Court praying for recalling of the above orders dated 3.3.1991 and 27.4.1991. The respondent No. 1 filed written objection opposing the said application. The executing Court, after hearing, by order dated 5.10.1991 rejected the said application dated 30.9.1991. Being aggrieved the appellant moved the High Court Division, and obtained Rule but the High Court Division after hearing discharged the Rule.
3. Leave was granted on the submissions that the High Court Division erred in law in interpreting Articles 84, 85, 88 and 90 of the Constitution, the provisions of Order XXI Rules 52 and 56 CPC, Articles 71 and 72 P.O. No. 127 of 1972 and wholly erred in holding that no Appropriation Act is necessary for withdrawing money from the Consolidated Fund for payment of decretal amount against the Republic; the executing Court erred in law in entertaining the application of the decree holding under Order XXI Rule 56 CPC in the absence of any specific provision made in the Appropriation Act of the relevant year for payment of decretal dues against the Republic from out of the Consolidated Fund and that the constitutional question raised is one of first impression and is of public importance.
4. The learned counsel appearing for the appellant submits that the High Court Division by misinterpreting the provision of Articles 85 and 88 of the Constitution, Order 21 Rules 52 and 56 of the Code of Civil Procedure and also Article 71 and of 72 of the Bangladesh Bank Order 1972 ( Presidents Order No. 127 of 1972) held that Clause (3) of Article 90 is controlled by Clause (e) of Article 88 of the Constitution and no other Act or instrument is necessary for withdrawing the money from the Consolidated Fund to satisfy the ex-parte decree and appellant, being a public officer, is under legal duty to obey the direction of the executing Court as communicated by notices dated 3.3.1991 and 27.4.1991; the High Court Division erroneously rejected the contention of the appellant that for payment
out of the Consolidated Fund, the annual financial statement of the relevant year must show the sums required to meet the expenditure charged by the under the Constitution and that in terms of Treasury Rules 1983, as amended, which has been framed by the President, money can not be withdrawn from the General Account without the written permission of the Treasury Officer or an Officer of the Bangladesh Audit Department authorized in this behalf by the Account General clearly unless the Finance Minister, after consultation with Accountant General otherwise directs in a proper case; no money can be withdrawn from the Account of the Government without an authority as contemplated in the said Rules and the appellant, in the absence of such authority, is not in a position to pay the decreetal amount from the Consolidated Found. The learned Counsel further submits that on receipt of the notice dated 27.4.1991 issued under Rules 52 and 56 of Order XXI of the Code of Civil Procedure, the appellant already wrote letter to the respondent Nos. 2 and 3 to take steps either depositing money in the account of the respondent No.l through his lawyer or give authority to the appellant to pay the money on their behalf which, prima facie, proves the bonafide of the appellant to obey the order of the Court.
5. The learned counsel for the respondents submits that under Order 21 Rules 52 and 56 of the Code of Civil Procedure the executing Court has the authority to execute the decree against the Republic and in terms of Article 71 of Bangladesh Bank Order, 1972 (President Order No. 127 of 1972 ) the appellant, being a public officer, is under legal duty to obey the direction of the executing Court for satisfaction of the decree as the Code of Civil Procedure as well as the Bangladesh Bank Order, 1972 are the Acts of Parliament and the mode of execution of the decree by attachment has been prescribed by the Code of Civil Procedure; payment out of the Consolidated Fund is in consonance with the mandate of clause (e) of Article 88 read with Articles 90 91 and 92 of the Constitution and if Clause (e)of Article 88 is read with Clause (3) of Article 90 of the Constitution it will be evident that it is only in respect of withdrawal of money from the Consolidated Fund relating to grants, an Act in the name of Appropnation Act is necessary and no Appropriation Act is necessary for payment o the decreetal dues out of the Consolidated Fund as Clause(3) of Article 90 beings with the words ” subject to the provisions of this Constitution, is controlled by Clause (3) of Article 90; an Appropriation Act is temporary enactment and relates to unstable financial estimates which varies from year to year and reflects the changes of policy of expenditure and not necessarily covers the payment of debt as contemplated under Clause (e) of Article 88 of the Constitution which is regulated under continuing statutory authority and accordingly the expenditure charged upon the Consolidated Fund under Clause(e) of Article 88 read with Articles 90, 91 and 92 of the Constitution is payable under continuing statutory authority as it is relatively constant in juxtaposition to unstable financial estimates guided by change of financial policy from year to year and it is also in consonance with the principle of judicial independence and so the executing Court has authority under Order 21 Rules 52 and 56 of the Code of Civil Procedure to execute the decree against the Republic and in terms of Article 71 of the Bangladesh Bank Order 1972 the appellant, being a public officer, is under legal duty to obey the orders of the executing Court as communicated by notices dated 3.3.1981 and 27.4.1991 for satisfaction of the decree.
6. As it appears the High Court Division discharged the Rule holding that under order 21 rules 52 and 56 of the Code of Civil Procedure read with Article 71 of the Bangladesh Bank Order 1972 the executing Court has the authority to execute the decree legally and direct the appellant to pay the dccreetal amount to the learned Advocate of the respondent No. 1 and in view of the provisions of Article 71 of the Bangladesh Bank Order 1972, the appellant, Governor of the Bangladesh Bank, being a public officer, is under a legal duty
to obey the above direction of the executing Court for satisfaction of the decree and that
if clause (3) of Article 90 of the Constitution is read with clause (e) of Article 88 of the Constitution then it will be evident that no Appropriation Act is necessary for payment of the present decreetal amount out of the Consolidated Fund and above Clause (3) of Article 90 is controlled by Clause (e) of Article 88 of the Constitution; as has been held in the case of FM Visvandhan Chetty and two others Vs.Arunachelam Chetti, ILR 44 Mad. 100 and Khazan Chand Vs. Moti Singh and another, AIR 1935 (Lahore) 914, the execution Court has authority to direct the public officer to satisfy the decree and accordingly there is no doubt that the executing Court has power for ordering attachment of the money in the hand of the appellant who is public officer as defined in Article 71 of
Bangladesh Band Order, 1972 and he is liable to pay the decreetal amount and that where the property belonging to the judgment debtor is in the custody of a Court or a public officer attachment shall be effected in accordance with order 21 Rules 52 and 56 of the Code of Civil Procedure read with Article 71 of Bangladesh Bank Order 1972 by a notice to the Court or the public officer to hold the property subject to further orders of the Court ordering attachment as has been held in AIR 1958(SC) 725, AIR 1935 (Lahore) 914, and AIR 1916 (Cal) 570.
7. So in the present appeal the moot question in whether the appellant is bound to pay the decreetal amount to the respondent No.l out of the Consolidated Fund without a separate instrument authorizing such payment ?
8. As it appears Article 85 of the Constitution provides that Custody of public money , there payment into or withdrawal from the Consolidate Fund or from the Public Account of the Republic and the matters connected with or ancillary to the matters aforesaid shall be regulated by an Act of Parliament and until provision in that behalf is made, by Rules made by the President; Article 87 of the Constitution provides that annual financial statement shall be laid before Parliament in respect of each financial year containing a statement of the estimated receipts and expenditure of the Government for that year and showing separately (a) the sums required to meet expenditure charged by or under this
Constitution upon the Consolidate Fund and (b) the sums required to meet the expenditure proposed to be made from the Consolidate Fund; Article 88 of the Constitution however describes the expenditures which shall be charged upon the Consolidate Fund and in terms of clause (e) thereof such expenditure includes ” any sums required to satisfy a Judgment, Decree, awarded against the Republic by any Court or tribunal and in terms of Clause(f) of the above Article 88 such expenditures will also include any other expenditure charged upon the consolidated Fund by the Constitution or by Act of Parliament; clause (1) of Article 89 of the Constitution provides that so much of this annual financial statement as relates to other expenditure charge upon the Consolidate Fund may be discussed in but shall not be submitted to the vote of parliament and Clause(2)of the above Article 89 provides that so much of the annual financial statement as relates to other expenditure shall be submitted to parliament in the form of demands for grants and the Parliament shall have power to assent to or to refuse to assent to any demand, or to assent to it subject to a reduction of the amount specified therein; Clause (1) of Article 90 of the Constitution provides that as soon as my be after the grants under Article 89 have been made by Parliament there shall be introduced in Parliament a Bill to provide for appropriation out of the Consolidated Fund of all moneys required
to meet (a) the grants so made by Parliament and (b) the expenditure charged on the Consolidated Fund but not exceeding in any case the amount shown in the annual financial statement laid before Parliament and Clause (3) o the above Article 90 provides
that subject to the provisions of this Constitution no money shall be withdrawn from the Consolidated Fund except under appropriation made by law passed in accordance with the provisions of this article.
9. Regarding the submissions of the learned counsel of the appellant to the effect that the Treasury Rules 1983, as amended, is a Rule made by the President and clause 13 of the same provides that unless the Finance Minister, after consultation with Accountant General, otherwise directs in any case no money can be withdrawn from the Government Account without the written permission of the Treasury Officer or an officer of the Bangladesh Audit Department authorized in this behalf by the Accountant General, as it appears was not raised before the High Court Division.
10. Though in terms of clause (e) of Article 88 any sums required to satisfy a judgment, decree or award by a Court or Tribunal, as in the present case, is charged upon the Consolidate Fund but Article 85 provides that the custody of public moneys, their payment into and the withdrawal from the Consolidated fund or, as the case may be, the Public Account of the Republic, and matters aforesaid, shall be regulated by Act of arliament, and until provision in that behalf is so made, by the Rules made by the President. Moreover in terms of Article 87 an annual financial statement has to be laid before parliament in respect of each financial year which shall show that (a) the sums required to meet expenditure charged by or under this Constitution upon the consolidated
Fund; and (b) the sums required to meet other expenditure proposed to be made from the Consolidated Fund.
11. Further clause (1) of Article 90 of Constitution provides that as soon as may be after the grants under article 89 have been made by Parliament there shall be introduced in Parliament a Bill to provide for appropriation out of the Consolidated Fund of all moneys required to meet (a) the grant so made by Parliament; and (b) the expenditure charged on the Consolidated Fund but not exceeding in any case the amount shown in the annual financial statement laid before Parliament.
12. It also appears that even in cases of expenditures charged on the Consolidated Fund by Clause (c) of Article 88 also as in the present case, bill has to be introduced in Parliament to provide for appropriation out of the Consolidated Fund. The words “shall be regulated by an Act of Parliament “as expressed in Article 85 of the Constitution cannot be stretched so as to mean that the Code of Civil procedure is such an Act of the Parliament because the constitution was promulgated in the year 1972 while the code of Civil Procedure existed since 1908 and the words ” shall be regulated” refers to further legislation and not to the Code of civil Procedure. Further as already stated, the words “the expenditure charged on the Consolidate Fund” as provided in Clause (b) of Article 90(1) of the constitution makes it mandatory to introduce in Parliament a Bill to provide for appropriation oul of the Consolidate Fund of the money required to meet the expenditure charged on the Consolidated Fund and Clause (3) of Article 90 does not mean that in view of Clause (e) of Article 88, the executing Court on the basis of Rules 52 and 55 of Order XXI the Code of Civil Procedure read with Article 71 and 72 of Bangladesh Bank Order 1972 the appellant to pay from the Consolidated Fund the decreetal dues to the account of the learned Advocates of the respondent No.l. Further the cases as cited by the High Court Division deals with the provision Order 21 of Rules 52 and 55 of the Code of Civil Procedure in respect of the simple attachment of money and not attachment out of the Consolidated Fund and so the principle laid down in the above cases are not at all applicable in the present case.
13. Further in the present case the appellant, who is the custodian of the Consolidated Fund, not being made a party in the suit out of which the execution case arose, is also not a judgment debtor and in view of Clause (b) of Article 90(1) he can not pay the decreetal dues from consolidate Fund unless Act of Parliament i.e. an Appropriation Act is passed in that behalf. Further there is also no authorization from the respondent Nos. 2 and 3, the judgment debtors for release of the fund though the appellant tried to obtain such authorization from the respondent Nos. 2 and 3 but failed. 14. The passage from Sir Thomas Erskine May’s Teaties on “The Law, Privilege, Proceedings and Usages of Parliament Act at page-616 upon which the High Court Division relied for discharging the Rule does not indicate that for payment of the decreetal dues, as in the present case, an Appropriation Act is not at all necessary and rather the words “The importance of the principle of appropriation in its relation to ordinary expenditure voted upon estimates, which very from year to year and reflect every change of policy, in relation to expenditure charged upon the consolidated Fund, which is payable under continuing statutory authority and is relatively constant every step in the development of the appropriation of supply has tended to increase the effectiveness and extent of the control of the House of Commons over the Administration. Among these steps may be noted the establishment of a distinction of procedure between the voting of expenditure and the voting of taxation, the establishment of the Consolidated Fund, the transference of the expenses of civil government from the Civil List to the estimates, and the sub-division and classification of the estimates themselves into distinct votes to be separately appropriated. By these means the principle of appropriation has been made more precise and effective and extended to include the whole range of expenditure of the executive government” as quoted in the judgment of the High Court Division show that expenditure which the government will incur to satisfy the decreetal dues have to be included in the annual financial statement.
15. Accordingly the appeal is allowed without any order as to costs and the order dated 7.7.1994 passed by the High Court Division in Civil Revision No. 758 of 1992 is set aside and the application dated 3.9.1991 filed by the appellant before the executing Court is allowed and the notices dated 3.3.1991 and 24.7.1991 issued by the executing Court are declared not legal. The connected Civil Petition No. 83 of 1995 is dismissed.
16. It is however observed that the respondent No. 1 obtained the ex-parte decree long ago but did not yet get the decreetal dues. In terms of Clause (e) of Article 88 of the Constitution expenditure for satisfying such decree is a charge upon the Consolidated Fund. So, it is desirable that Ministry of Finance, takes immediate steps for including the decreetal dues, which is the subject mater of the present case, in the annual financial statement to be prepared for next year so that above decretal dues may be paid out of the consolidated Fund. Further respondent Nos. 2 and 3 should also ascertain as to why Title Suit No. 8 of 1987 was left unattended which resulted to the passing of ex-parte decree and also find out the official (s) who was/were responsible for the default.Let a copy of the judgment be sent to the Ministry of Finance, Ministry of Works and also to the Solicitor.
Source : III ADC (2006) 427.