Appellate Division Cases
(Civil)
PARTIES
Md. Belayet Hossain …………………………………………Petitioner
-vs-
Abul Fayez Md. Abdullah and others……………………. Respondents.
JUDGES
Md. Ruhul Amin J
M.M. Ruhul Amin J
Md. Tafazzul Islam J
Amirul Kabir Chowdhury J
Date of Judgment
13th June 2005
The Code of Civil Procedure section 144, 151 Order 21, 39, 9 Rules 1,2,35,13
The transferee is ordinarily joined as a party to enable him to protect his interest. Whether joined as a party or not the transferee pendente lite by way of right in immovable property is bound by the decree. Since the Rules have been discharged as being infructious, the applicant has no interest to Protect in this Civil Revision. The Trial Court, if need be may add the applicant as a party in the suit (5)
It appears to us that inspite of the order of stay passed by the High Court Division, the executing court delivered possession in favour of the respondent Nos. 2-4 and as such the High Court Division passed the impugned judgment and order directing to restore possession to respondent No. 1. We do not find that the petitioner who is neither a plaintiff nor defendant thereby being not a decree holder not judgment debtor,
Could not legally resist the action and as such we find substance in the submissions of the learned counsel of the respondents. -.(8)
ADVOCATES
T.H.Khan, Senior Advocate, instructed by Nurul Islam Bhuiyan, Advocate-on-Record.
—For the Petitioner.A. J. Mohammad AH, Senior Advocate (A. Quayum, Senior Advocate with him), instructed by Aftab Hossain, Advocate-on-Record. …For Respondent No.l Not represented— For Respondent Nos. 2-6
JUDGMENT
1. Amirul Kabir Chowdhury J: The petitioner Md. Belayet Hossain seeks leave to appeal
against the judgment and order dated 5.4.2005 passed by the High Court Division in Civil
Revision No. 4754 of 2003 and Civil Rule No.08(R) of 2004 arising out of the said civil
revision discharging as infructuous and also disposing of the application for addition of party of the present petitioner and disposing of Civil Rule No. 74(R) of 2004 arising of the said civil revision which was filed against Order No. 23 dated 13.10.2003 passed by the Assistant Judge, Nawabganj in Title Execution Case No.04 of 2000 rejecting the application of the judgment debtor respondent No.l for stay of all further proceedings of Title Execution Case No. 4 of 2000.
2. Respondent Nos. 2-4 as plaintiffs filed Title Suit No.215 of 1996 before the 1st Court of Assistant Judge, Dhaka for declaration of title and recovery of possession of the suit property against respondent No.l and proforma respondent Nos. 5-6 impleading them as defendants in the said Suit. The Suit was decreed ex-parte on 23.06.1999. Respondent No. 1 filed Miscellaneous Case No.4 of 2000 on 20.02.2000 under Order 9 Rule 13 of the
Code of Procedure for setting aside the ex-parte decree and restoration of the original
suit. The plaintiff respondent Nos. 2-4 contested the miscellaneous case filing a written objection who, during pendency of the said miscellaneous case, also filed an application
on 3.7.2000 to execute the ex-parte decree by recovery of khas possession of the suit property of the aforesaid Title Suit No. 127 of 1997. The application was registered as Title Execution Case No. 4 of 2000 and respondent No.l appeared in the Title Execution Case and filed an application to stay further proceeding of the said Execution Case till disposal of the aforesaid Miscellaneous Case No. 4 of 2000. Respondent Nos. 2-4 contested the application by filing written objection and the executing court rejected the prayer of the judgment debtor respondent No. 1 Being aggrieved thereby respondent No.l moved the High Court Division under section 115(1) of the Code of Civil Procedure and obtained rule in Civil Revision No. 4754 of 2003 and order of stay was also obtained and he filed an application before the Executing Court on 29.11.2003 to stay further proceedings of the Execution Case informing the Executing Court about the rule and the order of stay has been passed and the Executing Court by order dated 29.11.2003 directed the respondent No. 1 to take steps to serve the copy of the above application to the decree holder respondent Nos. 2-4 and that Executing Court then sent writ of delivery of possession of the suit property to the bailiff under Order 21, Rule 35 of the Code of Civil Procedure to hand over possession infavour of the decree holder respondent Nos. 2-4 on 29.11.2003. The respondent No.l being aware of the writ of delivery of possession immediately filed an application on the very date i.e. on 29.11.2003 to recall the writ of delivery of possession till disposal of his application filed earlier by him on the same day. On 30.11.2003 the respondent No.l filed an application for recalling the writ of delivery of possession by furnishing certified copy of the order passed by the High Court Division on 19.12.2003 showing issuance of rule and order of stay. The Executing Court after hearing the parties recalled the writ of delivery of possession but in the mean time the respondent No.l had already been evicted from the suit premises on 30.11.2003 at about 2.30. p.m.
3. The respondent No. 1 being aggrieved filed an application under section 151 of the Code of Civil Procedure read with section 144 of the Code of before the High Court Division for restoration of possession of the property in his favour and the rule being Civil Revision No.74 (R) of 2004 thus arose. The respondent No.l thereafter, came to learn that the plaintiff respondent Nos. 2-4 an application before pro-forma respondent No. 6, Secretary, Ministry of Housing and Public Works for according permission to sell the suit property and then he filed an application before the High Court Division under Order 39 Rules 1 and 2 of the Code of Civil Procedure praying to restrain the respondent Nos. 2-4 by order of injunction from selling the suit property whereupon a rule being Civil Revision No. 8(R) of 2004 arose and respondent Nos. 2-4 were so restrained not to change the nature’ and character of the standing structure and not to accord permission to sell the property. 4. Respondent Nos.2-4 contested the Civil Revision Nos. 4754 of 2003 filing counter affidavit and denying the statements made by the respondent No. 1. During pendency of the Civil Revision No. 4754 of 2003, the present petitioner as an applicant filed petition before the High Court Division praying to add him as an opposite party in the rule stating, inter-alia, that respondent No. 2-4 entered into an agreement for sale of their land and building with the present petitioner on 25.5.2000 for a consideration of TK. 2,50,00000/- and already an amount of Tk. 8,00000/- was paid as advance to respondent Nos. 2-4 and that he also deposited Tk. 8,00000/- as transfer fee for the property in question to Bangladesh Bank and that therefore he was necessary party in the rule.
5. The High Court Division after hearing the , parties by the impugned judgment and order directed the trial court to restore possession of the suit land to the petitioner of Civil Revision No.4754 of 2003 i. e. respondent No.l, he being evicted in violation of the order of the High Court Division and Civil Revision No. 74(R) of 2004 was thus disposed of with the above direction. It may be mentioned that in the meantime Miscellaneous Case No. 4 of 2000 under order 9 Rule 13 of the Code of Civil Procedure has been allowed. In view of the order of the court allowing miscellaneous case Order 9, Rule 13 thus restoring the suit, the Civil Revision No. 4754 of 2003 was found infructuous and hence has been discharged by the impugned judgment and order. Similarly the rule issued in Civil Revision No. 9(R) of 2000 also was, in view of the altered position found to be in fructuous and therefore was discharged as infrutuous. The application of the present petitioner to implead him as party was thus disposed of with the following findings;
“The applicant claims to be a transferee pendente lite and opposite party Nos. 1-3 are his
vendors who are the plaintiffs of Title Suit No. 127 of 1997. The transferee is ordinarily joined as a party to enable him to protect his interest. Whether joined as a party or not the transferee pendente lite by way of right in immovable property is bound by the decree. Since the Rules have been discharged as being infructious, the applicant has no interest to Protect in this Civil Revision. The Trial Court, if need be may add the applicant as a party in the suit.”
6. Being aggrieved, the petitioner has preferred this petition. In support of this petition. Mr. T.H. Khan, the learned Senior Advocate submits that the petitioner having entered into a deed of agreement for purchase of the suit property, his interests are seriously involved in the subject matter of the suit and as such it was necessary to allow him to be impleaded as an opposite party in the civil revision and that being not done there has been an error of law occasioning failure of justice. He further submits that if possession is restored in favour of the respondent No. 1 pursuant to the impugned order of the High Court Division the petitioner shall be seriously prejudiced and multiplicity of proceedings may flow and as such the impugned judgment calls for interference.
7. Mr. A.J. Mohammad Ali, learned Senior Advocate appearing for respondent No. 1 opposed the petition submitting, inter-alia, that the petitioner has no locus standi to be impleaded as party in the civil revision as no legal right has been acquired in his favour and as such the petition has no substance.
8. We have considered the submissions made at the Bar and perused the materials on record. It appears to us that inspite of the order of stay passed by the High Court Division, the executing court delivered possession in favour of the respondent Nos. 2-4 and as such the High Court Division passed the impugned judgment and order directing to restore possession to respondent No. 1. We do not find that the petitioner who is neither a plaintiff nor defendant thereby being not a decree holder not judgment debtor, could not legally resist the action and as such we find substance in the submissions of the learned counsel of the respondents.
9. The learned counsel for the petitioner strenuously argued that the High Court Division committed an error of law in not allowing the application of the petitioner to be impleaded in the civil revision. From the order of the High Court Division as quoted above it appeas that the High Court Division clearly stated that the trial court if need may add the applicant (the petitioner) as a party in the suit and in such view of the Matter we do not find any substance in the submissions of the learned advocate.
In view of the discussions made above leave petition is accordingly dismissed.
Source: III ADC (2006) 904