Azizur Rahman Vs. Nur Alam and other, (Soumendra Sarker, J.)

Case No: Civil Revision No. 4186 of 2014

Judge: Soumendra Sarker, J

Court: High Court Division,

Advocate: Mr. Moloy Kumar Roy, Advocate ,

Citation: 2018(2) LNJ

Case Year: 2018

Appellant: Azizur Rahman

Respondent: Nur Alam and others

Subject: Code of Civil Procedure

Delivery Date: 2019-12-01

HIGH COURT DIVISION

(CIVIL REVISIONAL JURISDICTION)

Soumendra Sarker, J

 

Judgment on

02.11.2017

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Azizur Rahman

. . . Plaitniff-decree-holder-Petitioner

-Versus-

Nur Alam and others

. . Defendant-judgment-debtor--Opposite Parties

Code of Civil Procedure (V of 1908)

Order XXI

Rule 29

A third party to the original suit/case have no locus standi to prefer such application for staying further proceedings of the Execution Case No. 12 of 2012 arising out of the judgment and final decree passed in Other Suit No.51 of 2006. Hence; the opposite party No.13 was not at all lawfully authorized to bring any application for stay of the execution case of a decree passed in the previous suit and the application under Order XXI, rule 29 of the Code of Civil Procedure was absolutely misconceived as it was not tenable in the eye of law.          . . . (9 and 10)

52 DLR 172; 56 DLR (AD) 139; 6 MLR (AD) 234 ref.

Mr. Moloy Kumar Roy, Advocate

. . . For the petitioner

Mr. Taj Mohammad Sheikh, Advocate

. . . For opposite party No. 13

JUDGMENT

Soumendra Sarker, J: The Rule was issued calling upon the Opposite Party No.13 to show cause as to why the impugned judgment and order dated 17.06.2014, passed by the learned District Judge, Kurigram in Civil Revision No.18 of 2013 affirming the order dated 06.02.2013 passed by the learned Assistant Judge, Rajarhat, Kurigram in Other Execution Case No.12 of 2012 staying all further proceedings of the Execution Case till disposal of Other Suit No.05 of 2013, pending before the court of learned Assistant Judge, Rajarhat, Kurigram, filed by the opposite party No.13 as third party should not be set aside and/or pass such other or further order or orders as to this Court may seem fit and proper.

2.           The facts leading to the issuance of the Rule in a nutshell can be stated thus, that the present petitioner as plaintiff filed the original Partition Suit being No.51 of 2006 in the Court of learned Assistant Judge, Rajarhat, Kurigram. In that suit, the defendants No.2-7 and 9 after filing written statements contested the suit and after trial the learned trial court passed the judgment and decree on 14.01.2009 and 20.01.2009 respectively on contest against the contesting defendants and ex parte against the rest. Contesting defendant-opposite parties being aggrieved filed Other Appeal NO.32 of 2009 in the court of learned District Judge, Kurigram and the learned appellate court after hearing; affirmed the judgment and decree passed by the trial court by its judgment and decree dated 16.08.2011 and 21.08.2011 respectively. The trial court subsequently after receiving the report of the Advocate Commissioner along with filed book, sketch map, etc. drawn up the final decree on 23.08.2012 and the decree-holder-plaintiff-petitioner filed Execution Case No.12 of 2012 against the defendants to that case. In that execution case the present opposite party No.13 filed an application on 24.01.2013 under Order XLI, rule 29 of the Code of Civil Procedure for staying all further proceedings of Other Execution Case No.12 of 2012 till disposal of an Other Suit No.05 of 2013, pending before the court of learned Assistant Judge, Rajarhat, Kurigram filed by this opposite party No.13. The learned Assistant Judge on hearing the application allowed the same and stayed all further proceedings of the Execution Case No.12 of 2012 till disposal of the Other Suit No.05 of 2013 by his order dated 06.02.2013.

3.           Being aggrieved the decree holder-petitioner preferred a Civil Revision being No.18 of 2013 in the Court of learned District Judge, Kurigram and the learned District Judge, Kurigram by the impugned judgment and order dated 17.06.2014 disallowed the revisional application and affirmed the order of the learned trial court.

4.           Being aggrieved by and dissatisfied with the impugned judgment and order of the learned 1st revisional Court the plaintiff-decree holder-petitioner have preferred this 2nd revisional application with leave of this Court under section 115(4) of the Code of Civil Procedure and obtained the Rule with an interim order of stay.

5.           During hearing of this Rule Mr. Moloy Kumar Roy, the learned Advocate appeared on behalf of the petitioner while Mr. Taj Mohammad Shaikh the learned Advocate appeared on behalf of the opposite party No.13.

6.           The learned Advocate appearing on behalf of the petitioner submits that the learned trial court as well as the 1st Court of revision during passing their judgment and orders committed gross illegality resulting in an error in the decision occasioning failure of justice in staying further proceedings of the Execution case filed by the plaintiff-decree holder-petitioner. The learned Advocate further submits that the opposite party No.13 is a third party to the original case and he has no locus standi to file any application for staying further proceedings of the execution case, but the learned trial court as well as the 1st revisional court without appreciation of law stayed the further proceedings of the execution case illegally. The learned Advocate also submits that during pendency of Execution Case No.12 of 2012 the present opposite party No.13 filed an application for staying further proceedings of the execution Case under Order XLI, rule 29 of the Code of Civil Procedure, which has no manner of application in that type of relief. The learned Advocate further submits that, admittedly the opposite party No.13 is a third party to the original suit and it’s subsequent execution case and for the said reason there was no scope to stay the proceedings of the execution case under the ambit of Order XLI, rule 29 of Code of Civil Procedure. The learned Advocate in support of his contention referred some decisions of this Court and our Apex Court.

7.           As against the aforesaid submissions of the learned Advocate for the petitioner the learned Advocate appearing on behalf of the opposite party No.13 opposing the Rule submits that the civil revision under section 115(4) of the Code of Civil Procedure has a very limited scope and only for illegality and non-consideration of material facts and evidence on records resulting in an error in the decision occasioning failure of justice, a civil revision can be allowed and in the instant case; there is no such illegality and non-consideration of material facts or evidence resulting in an error in the decision occasioning failure of justice by which the impugned judgment and order can be interfered with. The learned Advocate after filing a counter affidavit on behalf of the opposite party No.13 further submits that at this stage inasmuch as a regular suit has been instituted by the opposite party No.13 being Other Suit No.5 of 2013 in respect of some land of the execution case, which is pending for disposal, the opposite party No.13 had locus standi to file the application for stay. The learned Advocate with regard to the scope of section 115 of the Code of Civil Procedure (V of 1908) referred some decisions.

8.           Considering the submissions of the learned Advocates having gone through the impugned judgment and order dated 17.06.2014 passed by the learned District Judge, Kurigram in Civil Revision No. 18 of 2013 along with the order of the trial court dated 06.02.2013 passed in Other Execution case No.12 of 2012 and all other relevant papers; it transpires that the present opposite party No.13 was not a party to the original Partition Suit No.51 of 2006 or it’s Other Appeal No.32 of 2009, or the Decree Execution Case No.12 of 2012. It further appears that the original Partition Suit being No. 51 of 2006 was decreed in favour of the decree holder-petitioner and during pendency of the execution case filed by the decree holder-petitioner, the present opposite party No.13 filed an application stating that he has filed a regular suit being Other Suit No.05 of 2013 in the Court of learned Assistant Judge, Rajarhat, Kurigram against the judgment and decree passed in Other Suit No.51 of 2006. In the pretext of citation of  Order XLI, rule 29 of the Code of Civil Procedure in the instant application for staying further proceedings of the execution case,the learned Advocate appearing on behalf of the opposite party during his submission submits that, inadvertently instead of Order XXI, rule 29 of the Code of Civil Procedure wrongly, Order XLI was written in the application and it was a clerical mistake and for such mistake the client should not suffer due to the fault of his lawyer. However, treating the application under the provisions laid down in Order XXI, rule 29 of the Code of Civil Procedure, having gone through the contents of the application along with the judgment and order passed by the 1st Court of revision, I find that the learned District Judge, Kurigram during disposal of the revisional application filed before him under section 115(2) of the Code of Civil Procedure rightly opined that the plaintiff, who has filed the other Suit No.05 of 2013, Md. Moklesur Rahman in fact was not a party to the disposed of Other Suit No.51 of 2006, but obviously; the learned district judge wrongly held that  inasmuch as there is an apprehension of further complicacy, there is a necessity for staying further proceedings of the Decree Execution Case No.12 of 2012; prior to disposal of Other Suit No. 05 of 2013 which has been instituted against the judgment and final decree passed in Other Suit No.51 of 2006.

9.           From the plain reading of the provisions laid down in Rule 29 of Order XXI of the Code of Civil Procedure it is crystal much clear to draw such inference that the learned trial court as well as the 1st revisional court were totally misconceived in grasping the proposition of the relevant law. The fact remains that, a third party to the original suit/case have no locus standi to prefer such application for staying further proceedings of the Execution Case No.12 of 2012 arising out of the judgment and final decree passed in Other Suit No.51 of 2006. It is also a decided matter in our judicature. Hence, the petitioner being a third party to a decree has no legal character or lawful status to maintain an application for stay of the execution proceedings and pendency of a suit filed by third party is no ground for staying a proceedings of such execution case which has arise out of such a decree in which the applicant was not a party. Rule 29 of Order XXI of the Code of Civil Procedure; empowered only a party to a suit viz. the judgment-debtor and the decree holder for filing such application, and the court may stay execution of a decree until pendency of the suit which has been instituted by the judgment-debtor and not third party. [Ref: 52 DLR 172; 56 DLR (AD) 139; 6 MLR (AD)234.]

10.       Having regard to the facts, circumstances and the discussions along with the decisions referred to; I am constrained to hold such a view that admittedly the present opposite party No.13 was not a party to the suit, filed by the present petitioner who was plaintiff to the original suit being Other Suit No.51 of 2006, out of which the Other Execution Case No.12 of 2012 is pending.  Hence; the opposite party No.13 was not at all lawfully authorized to bring any application for stay of the execution case of a decree passed in the previous suit and the application under Order XXI, rule 29 of the Code of Civil Procedure was absolutely misconceived as it was not tenable in the eye of law. It had no manner of application in the instant of nature of case, but it appears that the learned court below on a total misconception and misapprehension of law stayed the proceedings of the Execution Case No.12 of 2012. The plaintiff to the subsequent suit being a stranger to the previous decree have got no legal character or locus standi to bring or maintain any such application for stay of the execution proceedings of the previous suit. Acordingly; the order recorded by the learned trial Judge, as well as the 1st Court of revision was illegal ab initio. Be that as it may; the impugned judgment and order passed by the learned District Judge, Kurigram upholding the order of the learned trial Judge in staying the execution proceedings of the Execution Case No 12 of 2012 suffers from illegality, legal infirmity and substantial error of law.

11.       In the result; the Rule is made absolute. The impugned judgment and order dated 17.06.2014, passed by the learned District Judge, Kurigram in Civil Revision No.18 of 2013 affirming the order dated 06.02.2013 passed by the learned Assistant Judge, Rajarhat, Kurigram in Other Execution Case No.12 of 2012 staying all further proceedings of Other Execution Case till disposal of Other Suit No.05 of 2013, pending before the learned Assistant Judge, Rajarhat, Kurigram filed by the opposite party No.13 as third party is hereby set aside.

12.       The order of stay granted earlier at the time of issuance of the Rule stands vacated.

13.       However; there will be no order as to costs.

14.       Communicate the judgment and order at once. 

         Ed.  



Civil Revision No. 4186 of 2014