Shamsul Arefin Rao Vs. Mahbub Hossain

Appellate Division Cases

(Civil)

PARTIES

Shamsul Arefin Rao……………………. Petitioner (In both the cases)

-Vs-

Mahbub Hossain ……………………. Respondent. (In C.P. No. 1365 of 2003)

Mahbub Hossain and others ………………….Respondents. (In C.P. No.331 of 2002)

JUSTICES

Md. RuhulAmin CJ

M. M. Ruhul Amin J

Md. Jovnul Abedin J

Judgment  Dated: 12th March 2007

The Code of Civil Procedure, Order 21, Rule 99

The executing court noticed that the prayer for stay was earlier rejected and same was challenged but without success and finally Civil Petition No.331 of 2002 was filed before the Appellate Division which dismissed the same. The executing court also noticed that the petitioner has been trying to delay the disposal of the said Execution Case.

Accordingly the executing court by order dated 24.6.2002 rejected the prayer for stay of further proceedings of Other Execution Case No.4 of 1998 till disposal of Miscellaneous Case No.29 of 2002. The petitioner then filed the said Civil Revision No.3262 of 2002 against the said order dated 24.6.2002 and the rule issued therein was eventually discharged by the impugned judgment and order dated 3.5.2002. ………………(2)

Mr. Md. Nawab Mi, Advocate-on-Record……….. For (he Petitioner (In both the cases)

A.S.M. Khalequzzaman, Advocate-on-Record……………………….. For the Respondent, (In C.P. No.1365 of 2003)

Mr. Chowdhury Md. Zahangir, Advocateon-Record………………. For the Respondents (In C.P. No.331 of 2002)

Civil Petition For Leave To Appeal No. 1365 of 2003

With  Civil Petition For Leave To Appeal No.331 of 2002

(From the judgment and order dated 3.5.2003 and 2.1.2002 passed by the High Court Division in Civil Revision No.3262 of 2002 and Civil Revision No.4621 of 2000.)

JUDGMENT

Md. Joynul Abedin J: These two petitions for leave to appeal have arisen out of the judgment and order dated 3.5.2003 in Civil Revision No.3262 of 2002 and judgment

and order dated 2.1.2002 in Civil Revision No.4621 of 2000 respectively passed by

two separate Single Bench of the High Court Division discharging the Rules.

2. The short fact leading to the filing of the Civil Petition for Leave to Appeal No. 1365 of 2003 is that the petitioner, son of late Mohammad Ibrahim Rao, is the nephew of the respondent in the said leave petition. The father of the said respondent and the grandfather of the petitioner, Mohammad Hossain Box, filed the said Partition Suit No. 19 of 1962 in the 1st Court of the Subordinate Judge, Chittagong which was decreed on contest in the preliminary form on 22.11.1962. The defendants, who were the predecessors of the petitioner, preferred First Appeal No.96 of 1963 against the said

preliminary decree before the High Court Division, which was ultimately dismissed

for non-prosecution on 22.11.1980. The preliminary decree passed in the said partition

suit was therefore made final on 1.3.1986. The decree-holder respondent then started Other Execution Case No.4 of 1998 and the petitioner, Shamsul Arefin Rao, filed Miscellaneous Case No.29 of 2002 by filing an application under Order 21, Rule 99 of the Code of Civil Procedure. The petitioner subsequently filed an application in the said execution case for stay of all further proceedings of the execution case till disposal of

Miscellaneous Case No.29 of 2002. The executing court noticed that the praye for stay was earlier rejected and same was challenged but without success and finally Civil Petition No.331 of 2002 was filed before the Appellate Division which dismissed

the same. The executing court also noticed that the petitioner has been trying to delay the disposal of the said Execution Case. Accordingly the executing court by order dated 24.6.2002 rejected the prayer for stay of further proceedings of Other Execution Case No.4 of 1998 till disposal of Miscellaneous Case No.29 of 2002. The petitioner then filed the said Civil Revision No.3262 of 2002 against the said order dated 24.6.2002 and the rule issued therein was eventually discharged by the impugned judgment and order dated

3.5.2002. Hence the above leave Petition.

3. The short fact leading to the filing of Civil Petition for Leave to Appeal No.331 of 2002 is that the petitioner, as already stated above, is the nephew of the respondent No.l in the said leave petition and the father of the respondent No. 1 filed the said Partition Suit No. 19 of 1962 which was ultimately decreed in November 1962 on contest. Thereafter decree-holder, respondent No.l, put the decree into execution by filing Other Class Execution Case No.5 of 1986 which was subsequently renumbered as Other class Execution Case No.4 V- of 1998. During the pendency of the said execution case the petitioner filed Partition Suit No.97 of 2000 in respect of the same subject matter as that of the said Partition Suit No. 19 of 1962 for partition with further prayer for a declaration that the fins decree passad in the aforesaid Partition Suit No. 19 of 1962 was void and

inoperative. He (petitioner) also filed an application under Order 21, Rule 26 of the

Code of Civil Procedure for staying all further proceedings of the said execution case till the disposal of his Partition Suit No.97 of 2000 pending in the 1st Court of Subordinate Judge. Chittagong in respects of the suit property. The learned Subordinate .Judge by order dated 28.8.2000 rejected the said application. Thereafter the petitioner renewed is prayer on 7.9.2000. The learned Subordinate Judge rejected the said pra\er by order

dated 19.9-.2000. Subsequently the petitioner again filed two applications on

25.9.2000 praying for staying further proceeding of the said execution case for a

limited period in order to enable him to move tie High Court Division. The

learned Subordinate Judge rejected both the applications by orders dated 25.9.2000 and the petitioner thereafter field the said Civil Revision No.4621 of 2000 challenging the aforesaid last three orders. Rule issued in the said civil revision was also discharged by the impugned judgment and order dated 2.1.2002 and this led the petitioner to file the said leave petition.

4. Mr. Md. Nawab AH, the learned Advocate-on-Record, for the petitioner in both the leave petitions (the petitioner being the same in both the leave petitions) submits that since the petitioner has filed Partition Suit No.97 of 2000 in respect of the same subject matter as that of the Partition Suit No. 19 of 1962 the High Court Division erred in law in failing to stay all further proceedings of the said Other Execution Case No.4 of 1998 and as a result there has been a failure of justice calling for interference by this court.

5. We have heard Mr. Nawab Ali and considered all the points raised and involved in the matter and we are not impressed by the submissions. In the facts and circumstances

of the case, we are of the view that the High Court Division upon correct assessment of the materials on record and appreciation of law involved arrived at a correct decision. There is therefore no warrant in law to interfere with the same.

6. Accordingly, both the petitions are dismissed.

Source : V ADC (2008), 147

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