Mozharul Islam Chowdhury Vs. Dilip Kumar Roy

Appellate Division Cases

(Civil)

JUSTICE

Syed J. R. Mudassir Husain C J

Mohammad Fazlul Karim J

Amirul Kabir Chowdhury

PARTIES

Mozharul Islam Chowdhury Advocate………………………………….Appellant

Vs

Dilip Kumar Roy and others…………………………………………….Respondents.

Date of Judgment

21st June 2005

Specific Performance of Contract.

The Code of Civil Procedure Rule 29 Order 21.

Executing Court having stayed the Execution Case at the instance of third party and it violated the very maxim that the execution Court cannot go behind the decree (6)

The appellant already obtained a decree in his title Suit No. 404 of 1984 in which the respondent Nos. 1 and 2 were not parties. Under the facts and circumstances and in view of materials on record, we are of the view the respondents have no locus standi to file the so called applications for staying the execution proceeding (8)

( From the Judgment and Order dated 30th April, 2002 passed bv the Hi«h Court Division in Civil Rule No. 12 of 1995)

ADVOCATES

T.H. Khan, Senior Advocate, instructed by Md. Abu Siddique, Advocate-on-Record For the Appellant. Syed Mahbubur Rahman, Advocateon-Record For the Respondent No. 2 .

Ex-Parte Respondent Nos. 1, 3 and 4.

JUDGMENT

1. Syed J. R. Mudassir Husain C J: This appeal, at the instance of decree holder appellant, has arisen out of leave granted on 24th August, 2003 in civil petition for leave to Appeal No. 1122 of 2002 which was preferred by the appellant against the judgment and order dated 30.04.2002 passed by the learned Single Judge of the High Court Division discharging the Rule in Civil Revision No. 12 of 1995,

2. The short fact are that the appellant filed Title Suit No. 405 of 1984 against the respondent Nos. 3-4 for Specific Performance of Contract in the First Court of the Subordinate Judge, Dhaka for refusing to execute and register deed of sale in respect of the suit land in terms of the Bainanama (agreement) dated 07.10.1983 in favour of the appellant. That the learned trial Court after due service of summons upon the defendant respondents and exhausting all the process of law decreed the suit ex-parte on 29.06.1986 but due to failure on the part of respondent No. 3 to execute and register the kabala in favour of the appellant for the suit land within 60 days and in the aforesaid terms of the decree, the appellant filed Title Execution Case No. 20 of 1986 for getting the sale deed registered and possession of the suit property through Court, after depositing the balance consideration money in Court.

3. The trial Court having considered the facts and circumstances and the legal process executed and registered the kabala dated 06.01.1987 in favour of the decree holder appellant. Thereafter, the appellant applied in the Execution Case for getting possession of the suit property after evicting the concerned persons there form; that while the said matter was pending for disposal, the 3rd party respondent Nos. 1 and 2 filed 3 separate applications praying for stay of all further proceedings of the said Title Execution Case No. 20^ of 1986 till disposal of Title Suit Nos. 141 of 1991 (now Title Suit No. 21 of 1993) and 167 of 1991 (now Title Suit No. 20 of 1993) in the Court of First Subordinate Judge, Dhaka contending that they have filed the aforesaid suits for declaration of their title sand for setting aside the ex-parte decree dated 29.05.1986 passed in Title Suit No.405 of 1984 and for cancellation of the kabala deed registered through Court in favour of the decree holder appellant; that the Title Execution Case No. 20 of 1986 was transferred to the Subordinate Judge. Commercial Court and Artha Rin Adalat No. 2, Dhaka at the instance of respondent No. 1 and renumbered as Title Execution Case No. 3. The further case is that the aforesaid two separate applications dated 22.5.1991 and 21.06.1992 for stay of the further proceeding of this aforesaid Title Execution Case were taken up by the transferee Court on 10.11.1994 and the learned Subordinate Judge, Commercial Court and Artha Rin Adalat No.2, Dhaka on the same date stayed the further proceeding of the said Title Execution Case No. 3 of 1993 for a period of 6(six) months.

Ill ADC (2006) Mozharul Islam Chowdhury Vs Dilip Kumar Roy (Syed J. R. Mudassir Husain C J) 293

3. Being aggrieved by the aforesaid judgment and order dated 10-11-1994 the appellant moved the High Court Division in revision by filing Civil Revision Case No. 12 of 1995 and the Rule obtained was discharged by the impugned judgment of the High Court Division as aforesaid.

4. Mr. T.H. Khan, the learned Counsel appearing for the appellant, submitted that the decree was obtained by the appellant a far back as in the year 1986 and that till today the appellant could not reap the benefit of the decree due to some ulterior motive of some persons. Learned Counsel also pointed out that the Execution Case was stayed on an application filed by a person who was not judgment debtor but a third party. He therefore argued that even through the respondents 1 and 2 were made defendants in Title Suit No. 151 and 167 of 1991 only for that reason the appellant can not be prevented from enjoying the benefit of the decree which was obtained as far back as in the year 1986.

5. In elaborating this above point, Mr. T.H. Khan argued that the exercise of power under Rule 29 Order 21 of the Code of Civil Procedure is essentially a discretionary power which the Court exercises with great caution and circumspection when an application is made by the parties to the original suit (decree) such as, the judgment debtor; that in the instant case, the High Court Division itself found that the opposite party Nos. 1 and 2(in Civil Revision Case ) were not parties in the original suit and decree sought to be executed and so erred in law in law in not holding that the said two opposite parties herein had no right or locus standi to file two separate applications dated 22.05.1991 and 21.06.1991 praying for staying the pending execution proceedings on the plea of filing new suits challenging the original decree and as such the findings and decisions as arrived at by the High Court Division are liable to be set aside. We find enough force in his argument. We, therefore, hold that the provision of Rule 29 of Order 21 of the Code of Civil Procedure is not applicable in the instant case because of the fact that the said two applications for stay as filed by the persons against whom no decree was passed.

6. Mr. Khan lastly argued that executing Court having stayed the Execution Case at the instance of third party and it violated the very maxim that the execution Court cannot go behind the decree.

7. Mr. Syed Mahbubur Rahman, the learned Advocate-on-Record appearing for the respondent No. 2, supporting the impugned judgment of the High Court Division, contended that the suit property is a debutter property in the name of Sree Sree Madan Mohan Gour Netai Bagraha and the Sheba Puja is being regularly performed in the temple (i.e. the suit land) at the instance of the respondent No.2, who is the next friend on behalf of the management committee of the Deity. He further contended that the appellant has fraudulently obtained the ex-parte decree using false thumb impression of the lady who was e\neither the owner nor the Shebait of the Deity and as such he had no authority to execute any bainapatra in favour of the appellant. His above argument cannot be accepted at this belated state because of the fact that the trial Court considered all the materials on record and having been satisfied passed the ex-parte decree.

8. We have heard the learned lawyers of both sides and considered their submissions. It appears that the appellant already obtained a decree in his title Suit No. 404 of 1984 in which the respondent Nos. 1 and 2 were not parties. Under the facts and circumstances and in view of materials on record, we are of the view the respondents have no locus standi to file the so called applications for staying the execution proceeding. If the respondents prove their case in their subsequent suits, they would get their reliefs as prayed for. In the aforesaid premises, we find substance in the appeal. Accordingly, the judgment and order of the learned Subordinate Judge as well as the impugned judgment of the High Court Division are set aside. In the result, this appeal is allowed without any order as to cost.

Source : III ADC (2006), 291.

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