Appellate Division Cases
(Civil)
PARTIES
Kazi Shamsul Huq & others ……………………………Appellants.
-VS-
Robeya Begum & others ……………………………… Respondents.
JUSTICE
Syed J.R. Mudassir Husain.CJ
M.M. Ruhul AminJ
Amirul Kabir ChowdhuryJ
Date of Judgment 24th August 2006
The Limitation Act, Artical 182, 182(5), 182(3) Order XLI, Rule 5 of the C.P.C
For declaration of title and for recovery of khas possession (2)
The High Court Division erred in law in applying Article 182 (5) of the Limitation Act, overlooking the provisions laid down in Article 182(3) of the Limitation Act providing for 3(three) years time after the passing of the final order in review application. He next submits that the decree holder appellants were not required to file an application for proceeding with the pending Title Execution Case No.18 of 1980 as it was the duty of the executing court to proceed with the same suo-motu and the said Title Execution Case being a pending one was not barred by limitation in view of the principles of law enunciated by the Appellate Division in the case of Shah Newaz Ebne Mostaque and others Vs. Shah Alam and others reported in 55 DLR(AD) 69 (6)
Decree-holder was not required to file an application for proceeding with the pending execution case as it was the duty of the Court to proceed with the same suomoto (8)
ADVOCATES
Abdul Wadud Bhuivan, Senior Advocate, instructed by Mr. Aftab Hossain, Advocateon-
Record For the Appellants. Khandker Mahbubuddin Ahmed, Senior Advocate, (Harendra Nath Nandi, Advocate with him) instructed bv Md. Nawab Ali, Advoate-on-Record From Respondent Nos.1-3. Jillul Huq, Senior Advocate, instructed by Sufi a Khatun, Advocate-on-Record Respondent Nos.4-7 (Addedparty).
ORDER
1. M.M. Ruhul Amin, J: This appeal by leave is directed against the judgment and order dated 28.05.2003 passed by a Single Bench of the High Court Division in Civil Revision No. 5090 of 2002 making the Rule absolute.
2. Short facts are that the predecessors of the plaintiffs instituted Title Suit No.73 of 1976 in the 1st Court of Subordinate Judge (now Joint District Judge), Comilla for declaration of title and for recovery of khas possession. The suit was deereedon contest on 30.09.1980 and Title Execution Case No. 18 of 1980 was filed for execution of the decree after evicting the trespasser defendants therefrom. The judgment-debtor then filed 1st Appeal No.20 of 1981 before the High Court Division and by the judgment and decree dated 07.07.1996 the trial court’s decree was modified. The judgment debtor filed Civil Petition for Leave to Appeal No. 689 of 1996 before the Appellate Division and obtained an order of stay. The Civil Petition for Leave to Appeal No. 689 of 1996 was dismissed on 16.03.1997 whereupon the judgment-debtor filed Civil Review Petition No. 14 of 1997 but the same was dismissed for default no 16.11.2000. The decree holder, however, filed Title Execution Case No. 3 of 2002 on 08.06.2006 through bonafide mistake forgetting about the tendency of the earlier Title Execution Case No. 18 of 1980 and subsequently filed an application for withdrawal of the subsequent Execution Case which was rejected on 03.09.2002. The decree holder thereupon prayed for amendment of the execution petition and also praying for deputing a Magistrate with police force along with an Advocate Commissioner to deliver possession. But the learned joint District Judge by order dated 03.09.2002 allowed the amendment petition and vacated the order of stay and passed necessary orders for proceeding with the Title Execution Case No. 18 of 1980. The Judgment-debtors, however, filed an application stating that in the meantime, the Title Execution Case No-18. of 1980 became barred by limitation under the provision of Article 182 of the Limitation Act and learned Joint District Judge after hearing the parties rejected the said application by order dated 28.09.2002 and directed issuance of the writ of delivery of possession in the instant case. The Judgment-debtors thereafter filed Civil Revision ^Case No.5090 of 2002 impugning the said order with the averment that the decree-holders filed the Execution Case No. 18 of 1980 in time but when the decree was modified by the Court of appeal below in First Appeal No. 02 of 1981 by the judgment and decree dated 07.07.1996 drawn on 03.11.1996, the decree-holders ought to have taken steps in the Execution Case in aid of the execution of the same as per modification within 3 years from the date of at least within 3 years from the date of dismissal of the Civil Petition for Leave to Appeal and accordingly the execution case is barred by limitation as no step has been taken within 3 years from the dismissal of the leave petition. The High Court Division made the Rule absolute setting aside the orders dated
Ka/.i Shamsul Huq & others vs Robcya Begum & others (M.M Ruhul Amin. J) III ADC (2006) 03.09.2002 and 28.09.2002 allowing to proceed with the Execution Case No. 18 of 1980.
3. Leave was granted to consider the submission that the learned judge of the High Court Division has erred in law in holding that Article 182(5) of the Limitation Act applies in the instant case and the Execution Case No. 18 of 1980 is barred by limitation as no step in aid was taken within 3 years from the date of dismissal of the leave petition whereas said Article has no manner of application in the instant case and the further submission that the learned judge of the High Court Division has erred in law in applying Article 182(5) of the Limitation Act, overlooking the provisions laid down in Article 182 (3) of the said Act. which provides for 3 years time after the passing of the final order in review application. 4. We have heard Mr. Abdul Wadud Bhuiyan, he learned Counsel for the appellants and Mr. Khandker Mahbubuddin Ahmed, the learned Counsel for respondent Nos. 1-3 and Mr. Jillul Huq, the learned Counsel for respondent Nos. 4-7 and perused the judgment of the High Court Division and other connected papers. 5. It is not disputed that the Title Suit’No. 73 of 1976 brought by predecessors of plaintiffs in.the First Court of Subordinate Judge (now Joint District Judge), Comilla for declaration of title and recovery of khas possession was decreed on contest on 30.09.1980 and Title Execution case No. 18 of 1980 was started for taking delivery of possession in the suit land. It is on record the judgment-debtor filed First Appeal No.20 of 198f before the High Court Division and the decree of the trial court was modified by the High Court Division by judgment dated 07.07.1996. The judgment debtor then filed Civil Petition for Leave to Appeal No. 689 of 1996 before the Appellate Division and obtained an order of stay. The
said Civil Petition for leave to Appeal No. 689 of 1996 was dismissed on 16.03.1997. The judgment-debtor then filed Civil Review Petition No. 14 of 1997, which was dismissed for default on 16.11.2000. Thereafter, the decree holder filed Title Execution Case No.3 of 2002 on 08.06.2002 through bonafide mistake forgetting about the pendency of the earlier Title Execution Case No. 18 of 1980 and lateron filed an application for withdrawal of the subsequent title execution case which was rejected on 03.09.2002. But the learned Joint District Judge by order dated 03.09.2002 allowed the Title Execution Case No. 18 of 1980 to proceed. Thereafter, judgment debtor filed an application, stating that the Title Execution Case Nq. 18 of 1980 has in the meantime become barred by limitation under Act and the learned Joint District Judge upon hearing the parties rejected the said application by order dated 28′.09.2002. The Judgment debtors then filed Civil Revision No. 5090 of 2002 impugning the said order and the Rule was made absolute by the High Court Division by the impugned judgment.
6. Mr. Bhuiyan submits that the learned single Judge of the High Court Division erred in law in holding that Article 182 (5) of the Limitation Act applies in the instant case and the Title Execution Case No. 18 of 1980 is barred by limitation as no step in aid was taken within 3(three) years inasmuch as the said Article of the Limitation Act has got no manner of application in the present case when the Title Execution Case No. 18 of 1980 was pending before the said execution Court. He further submits that the learned Single Judge of the High Court Division erred in law in applying Article 182 (5) of the Limitation Act. overlooking the provisions laid down in Article 182(3) of the Limitation Act providing for 3(three) years time after the passing of the final order in review application. He next submits that the decree holder appellants were not required to file an application for proceeding with the pending Title Execution Case No. 18 of 1980 as it was the duty of the executing court to proceed with the same suo-motu and the said Title Execution Case being a pending one was not-barred by limitation in view of the principles of law enunciated by the Appellate Division in the case of Shah Newaz Ebne Mostaque and others Vs. Shah Alam and others reported in 55 DLR(AD) 69.
7. Mr. Khandker. on the other hand, submits that the Review Petition No. 14 of 1997 against the dismissal of the Leave Petition No. 689 of 1996 was filed by the respondent (judgment-debtor) and no stay order was obtained in he review petition and in view of the dismissal for default of the review petition on 06.11.2000, the limitation started to run from 16.03.1997 when the leave petition was dismissed and no step-in-aid was taken within 15.03.2000 and hence the appeal is liable to be dismissed. He next submits that the provisions of Article 183 (3) of the Limitation Act has no manner of the application in this case because there has been no decision in the review case either granted or refused rather the same was dismissed for default and as such the appeal is liable to be dismissed. He further submits that in order to determine whether Article 181 or 182 of the Limitation Act is applicable in this case, the true test is to ascertain whether any one of the several points of time specified in column 3 of the Article 182 of the Limitation Act is applicable to it and as Article 182(5) of the Limitation Act provides that an application is to be made in accordance with law to the proper court for execution or to take some step-in-aid of execution of the decree.
8. In 55 DLR (AD) 69 case although the facts are a bit different, it was held that the decree holder was not required to file an application for proceeding with the pending execution case as it was the duty of the Court to proceed with the same suo-moto. In the case of Baburam Lai and another Vs. Debdas Lala reported in AIR 1959 Calcutta 73, it was held that while it is settled law that the decree of the appellate Court supersedes the original decree passed by the trial court, it does no necessarily follow that the execution proceedings already instituted became dead. It was reasonable to consider that on and from the passing of a decree by the Court of appeal, the application which was originally for execution of the trial Court’s decree becomes an application for the execution of the appellate Court’s decree. Where in an appeal the decree is modified in such a manner that the proceedings can still of on, it will be for the Court concerned to decide whether it will allow necessary amendment of the application for execution in order that it may become propertey an application for execution of the appellate Court’s decree. In the case of Chauthilal Vs. Badri Prasad and another reported in AIR 1960 Rajasthan 249, it was held that as under: ” The authorities, which lay down that the decree of the trial court gets merged in the decree of the appellate court are no doubt correct, but the said decisions only emphasise this fact when dealing with the question of limitation as to when the period of limitation will commence for exeution of the decree, or when the point in disptue is as to what court can amend the decree. Order XLI, Rule 5, C.P.C., says that an appeal shall not operate as a stay of proceedings under a decree of order appealed from except so far as the Appellate Court may order, nor shall execution of a decree be stayed by reason only of an appeal having been preferred from the decree; but the Appellate Court may for sufficient cause order stay of execution of such decree. It is evident that when a decree of the lower Court is taken out in execution, it may be stayed by the appellate Court, but when the appeal is dismissed, the execution proceedings can continue, the dismissal of the appeal would no doubt have the result of the lower Court’s decree being merged in the decree of the appellate court, but that would
not have the effect of wiping out the proceedings taken for execution of the decree passed by the trial court, what should be done in a case of this nature is that the decree- holder of for that matter the judgment-debtor can inform the court as to the result of the appeal, and the execution proceedings can further continue in accordance with what has been decided by the appellate court. The same indication is found in order XXI, Rule 11. where sub-rule (2). clause(d) requires a mention whether any appeal has been preferred from a decree. The decree to be executed is the decree of the trial court,and when the appeal is decided, one of the two parties has to inform the court as to what has happened in the appeal, so that the rights of the parties as determined by the higher court may be enforced. If the effect of the decision of the appeal were to mullify the execution proceedings, much injustice would be caused in a great many cases. Suppose, for instance, the property of the judgment-debtor so attcched, and the property is put up for sale. If in the mean while the appeal is decided and a fresh application is necessary, all the previous proceeding attachment, fresh proclamation, and fresh sale would become necessary, and in the meanwhile other complications may arise, and the decree-holder may be put to the trouble and expense of taking all the proceedings over again. Other decree-holders may come into existence in the meanwhile, and may claim rateable distribution in certain cases, or the property may be transferred, and the question of bonafide transfer for value may arise what is only necessary is that as soon as an appeal is decided, it is for one or the other party concerned to inform the court as to what has happened in the appeal, or a note made by the court as to what relief had been granted by the appellate court, and to determine the rights of the parties in execution according to the decision of the appellate court.” The learned counsel for the respondent had placed before us the case of L. Bengali Mai and others Vs. Baijnath prasad and others reported in AIR 1942 Allahabad 338 and submitted that in that case it was held that the words “where there has been a review of judgment” in Article 182(3) must be interpreted strictly as meaning what they say. Article 182(3) applies only where review application has been allowed and there has been actual review or re-hearing. Article 182(3) has no application where review application is rejected. In the instant case, the original Title Execution case no. 18 of 1980 was pending and the subsequent Execution case No.3 of 2002 filed by the decree holder though inadvertence during pendency of the earlier Titles Execution Case No. 18 of 1980 was subsequently rejected and the decree holder was allowed to proceed with the pending Execution case No.18 of 1980.
11 .In view of the discussion above, we are of pinion that either the decree holder or the judgement-debtor could inform the executing court regarding modification of the trial court’s decree by the appellate court or the Executing Court could suo motu proceed with the pending Execution Case No. 18 of 1980 as the same did not become time barred, we are also of the view that in the instant case the provisions laid down in article 182(3) of the Limitation Act providing for three years time after passing final order in the review application shall apply and the provision of Article 182(5) of the Limitation Act is not applicable.
12. The appeal is accordingly allowed without any order as to costs.
Source: III ADC (2006) 800