Md. Abdur Rahman and others Vs. Nazrul Islam and others

Appellate Division Cases

(Civil)

PARTIES

Md. Abdur Rahman and others………. Petitioner.

-Vs

Nazrul Islam and others…………………… Respondents.

JUSTICES

Mohammad Fazlul Karim J

Md. Joynul Abedin J

Md.Hassan Ameen J

Judgment Dated:30th October 2007

For declaration and partition………………… (2)

Discharged the rule with a direction on the executing court to dispose of the said Execution Case within l(one) month from the date of receipt of the order mainly on the ground that the petitioners were third party to the said Execution Case and as such they had no right in law to stay the execution case. …………………..(3)

Accordingly, the petition is dismissed. ……………..(7)

Md. Nawab AH, Advocate-on-Record. ………….For the Petitioners

  1. Y. Mosihuzzaman, Advocate, instructed by Mrs. Sufia Khatun, Advocate on-Record…………………… For Respondent Nos.l & 2

For Respondent Nos. 3-34 ……………….Not Represented.Civil Petition For Leave To Appeal No.254 of 2006

(From the judgment and order dated 26.1.2006 passed by the High Court Division in Civil Revision No.4600 of 2004.)

JUDGMENT

Md. Joynul Abedin J: This petition for leave to appeal at the instance of the plaintiffs is directed against the judgment and order dated 26.1.2006 passed by a Division Bench of the High Court Division in Civil Revision No.4600 of 2004 discharging the rule.

2. Short fact of the case is that the petitioners as plaintiffs instituted Other Class Suit No. 17 of 2002 in the Court of Assistant Judge, Chilmari, Kurigram for a declaration that the judgment and decree dated 29.5.1991 in Other Class Suit No.20 of 1986 filed by the respondents was not binding on them and also for partition on the allegations that they purchased the suit land from the original co-sharers by inheritance and thus became the co-sharers of the suit land. But the petitioners were not made parties in the aforesaid Other Class Suit No.20 of 1986 by the respondents and the aforesaid judgment and decree dated 29.5.1991 were passed behind their back. In this background of the case the petitioners filed the aforesaid Other Class Suit No. 17 of 2002 for declaration and partition as stated above asserting that since they have title and possession in the suit land the Other Execution Case No.2 of 1996 arising out of the judgment and decree dated 29.5.1991 was liable to be stayed. The petitioners filed an application before the executing court in the aforesaid Other Execution Case No.2 of 1996 praying for stay of all further proceedings of the execution case and the said application was rejected by order dated 3.11.2004. The petitioners then moved the learned District Judge in Civil Revision No.28 of 2004 but the learned District Judge by order dated 9.11.2004 rejected the same summarily. The petitioners thus being aggrieved filed Civil Revision No.4600 of 2004 and obtained rule and stay and the stay was subsequently vacated.

3. The learned Single Judge of the High Court Division by the impugned judgment dated 26.1.2006 discharged the rule with a direction on the executing court to dispose of the said Execution Case within l(one) month from the date of receipt of the order mainly on the ground that the petitioners were third party to the said Execution Case and as such they had no right in law to stay the execution case.

4. Mr. Md. Nawab Ali, the learned Advocate-on-Record for the petitioners submits that the courts below erred in failing to appreciate and consider that the petitioners were necessary parties to Other Class Suit No.20 of 1986 but they were not made parties to the said suit and thus the decree obtained in the said suit behind their back is not binding on the petitioners and in this view of the matter the aforesaid Execution Case No.2 of 1996 can not proceed till Other Class Suit No. 17 of 2002 filed by the petitioners against the respondents challenging the decree passed in the aforesaid Other Class Suit No.20 of 1986 is heard and disposed of.

6. We have heard the learned Advocate and perused the connected papers including the impugned judgment. We do not find any substance in the point raised. The High Court Division upon correct assessment of the materials on record arrived at a correct decision. We therefore find no reason to interfere with the same.

7. Accordingly the petition is dismissed.

Source : V ADC (2008) 395

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