Bangladesh House Building Finance Corporation Vs. Md. Nuruzzaman [4 LNJ AD (2015) 197]

Case No: Civil Petition No. 1924 of 2009

Judge: Md. Muzammel Hossain,

Court: Appellate Division ,,

Advocate: Mr. Shaheed Alam,Mr. Md. Mazibar Rahman,,

Citation: 4 LNJ AD (2015) 197

Appellant: Bangladesh House Building Finance Corporation

Respondent: Md. Nuruzzaman

Delivery Date: 2012-05-28


APPELLATE DIVISION
(CIVIL)
 
Md. Muzammel Hossain, CJ
Surendra Kumar Sinha, J
Md. Abdul Wahhab Miah, J
Nazmun Ara Sultana, J
Syed Mahmud Hossain, J
Muhammad Imman Ali, J
Md. Shamsul Huda, J

Judgment on
28.05.2012
  Bangladesh House Building Finance Corporation
. . . Petitioner
Versus
Md. Nuruzzaman
 
 
Code of Civil Procedure (V of 1908)
Order XXI, Rule 17
The cited decisions of this Division clearly show that the High Court Division rightly found that the order dated 07.05.2008 allowing the prayer for amendment of the application for execution suffers from error of law which has resulted in an error in the decision occasioning failure of justice for which there is no illegality in the impugned judgment and order of the High Court Division.      . . . (15 and 16)

Sonali Bank Vs. Mahbubul Amin and another, 42 DLR (AD) 107; Sonali Bank Vs. Mahbubul Amin and another, 42 DLR (AD) 107 and Janata Bank Vs. M./S. Wahid Enterprise (Pvt.) Ltd., 1995 BLD (AD) 51 ref.
 
For the Petitioner: Mr. Shaheed Alam, Advocate, instructed by Mr. Syed Mahabubar Rahman, Advocate-On-Record.
For the Respondent: Mr. Md. Mazibar Rahman, Advocate-on-Record.

Civil Petition No. 1924 of 2009
 
JUDGMENT
Md. Muzammel Hossain, CJ:

This petition for leave to appeal under Article 103 of the Constitution of the People's Republic of Bangladesh is directed against the judgment and order dated 28.06.2009 passed by a Division Bench of the High Court Division in Civil Revision No.3099 of 2008 making the Rule absolute.

The petitioner filed Miscellaneous Case No.154 of 1982 in the Court of the learned District Judge, Mymensingh against the respondent under Article 27 of President’s Order No.7 of 1973 for realization of Tk.6,03,407.02 which includes the principal amount as well as the interest till 31.10.1982. The Miscellaneous Case was allowed exparte on 03.04.1983. The petitioner thereafter filed Execution Case No.1 of 1986 in the Court of the learned District Judge, Mymensingh which was subsequently transferred to the Artha Rin Adalat by an administrative order of the learned District Judge and renumbered as Execution Case No.80 of 1991. The petitioner being the bidder of auction purchase of the suit land obtained the sale certificate and while making attempt to take possession of the said building with police help the respondent filed a Transfer Case being Miscellaneous Case No.74 of 1997 before the Court of the learned District Judge, Mymensingh alleging that all orders passed in the execution case was without jurisdiction and the learned District Judge by order dated 08.04.1999 held that in view of the decisions reported in 47 DLR 158 and 16 BLD (AD) 231 Artha Rin Adalat is not permitted to prosecute the execution case. In the said execution case the decree-holder filed an application for amendment of the execution petition and the executing court by impugned dated 07.05.2008 allowed the amendment of execution petition which reads as follows: "উক্ত কর্পোরেশন বিগত ৩/৪/৮৩ ইং তারিখে একতরফা সূত্রে এই ডিক্রি প্রাপ্ত হইয়াছে। মূল মোকদ্দমায় দায়িক পক্ষ প্রতিদ্বন্দ্বিতা করেন নাই। একতরফা ডিক্রিতে আদায়কাল কত সুদ ডিক্রিদার পক্ষ প্রাপ্ত হইবেন উল্লেখ থাকায় শুধুমাত্র সুদের হিসাব করিয়া ডিক্রীদার সেই অংকটি ডিক্রীজারীর দরখাস্তে সন্নিবেশন করার আবেদন করিয়াছেন। ইহাতে আপত্তি করার কোন সুযোগ নাই। এমতাবস্থায়, দায়িক পক্ষের সময়ের আবেদন নাকচ করা হইল। পক্ষান্তরে, ডিক্রীদারপক্ষে সংশোধনী আবেদন মঞ্জুর করা হইল। ডিক্রী জারীর দরখাস্ত ও রেজিষ্ট্রি প্রার্থিত মতে সংশোধন করা হউক।"

The respondent being aggrieved by the aforesaid judgment and order dated 07.05.2008 preferred the Civil Revision No.3099 of 2008 before the High Court Division and a Division Bench of the High Court Division by the judgment and order dated 28.06.2009 made the Rule absolute.

Being aggrieved by the impugned judgment and order passed by the High Court Division, the petitioner preferred the instant civil petition for leave to appeal before this Court.

Mr. Shaheed Alam, the learned Advocate appearing for the petitioner submits that the petitioner filed the application for amendment under Order 21, Rule 17 of the Code of Civil Procedure so that actual amount due to be shown in the decree because this would not affect the claim of the petitioner and the same was reasonable and fair, but the High Court Division wrongly appreciated the fact and set aside the order passed by the learned District Judge. He then submits that the petitioner was a party in auction sale and as such respondent has no locus-standi to raise objection as to the amount which will not affect the interest of the respondent. He finally submits that the respondent without filing any application to set aside the auction cannot raise any objection to an order passed under order 21 rule 17 of the Code of Civil Procedure, but the High Court Division wrongly passed the impugned order which has affected the interest of House Building Finance Corporation and as such leave should be granted.

Mr. Md. Mozibar Rahman, the learned Advocate-on-Record for the respondent submits that there is no illegality in the impugned judgment and order passed by the High Court Division and as such no interference is called for. The learned Advocate-on-Record for the respondent having referred to Order 21, Rule 17 of the Code of Civil Procedure submits that Rule 17(1) of Order 21 of the Code refers only to the requirements of Rules 11-14 as may be applicable to the case and in the instant case the alleged defect in execution application has no reference to Rules 11-14 of Order 21, inasmuch as the exparte order dated 04.03.1983 passed by the learned District Judge in Miscellaneous Case No.154 of 1982 does not contain any direction upon the defendant respondent to pay interest from the date of the exparte order till realization and as such this Rule does not apply to allow the petitioner to rectify the mistake in the application for execution and that the learned Judges of the High Court Division having considered this aspect of the matter rejected the prayer for amendment of the application for execution in making the Rule absolute by the impugned judgment and order, as such there is no illegality in the impugned judgment and order. Mr. Md. Mozibar Rahman having referred to the order dated 03.04.1983 passed by the learned District Judge submits that since there is no specific order for interest till realization of the decreetal amount, the learned District Judge as an executing Court has clearly travelled beyond the order which is to be executed by imposing interest till realization of the amount and as such the High Court Division committed no illegality in making the Rule absolute by setting aside the order passed by the learned District Judge.

We have heard the learned Advocates appearing for both the parties, perused the leave petition, impugned judgment and order passed by the High Court Division and all other connected papers on record. In the instant case the petitioner filed Miscellaneous Case No.154 of 1982 in the Court of learned District Judge, Mymensingh against the judgment-debtor-respondent under Article 27 of President's Order No.7 of 1973 for realization of Tk.6,03,407.02 which includes the principal with interest till 31.10.1982. The decree holder-petitioner obtained exparte order on 03.04.1983. Thereafter on the basis of the said exparte decree Execution Case No.1 of 1986 was filed in the Court of the learned District Judge, Mymensingh which was subsequently transferred to the Court of Artha Rin Adalat by an administrative order of the learned District Judge and renumbered as Execution Case No.80 of 1991. The respondent having come to know about the Execution Case filed a a Transfer Case being Miscellaneous Case No.74 of 1997 in the Court of the learned District Judge, Mymensingh to bring the said Execution Case before the learned District Judge. The learned District Judge upon hearing both the parties by the order dated 08.04.1999 allowed the Miscellaneous Case No.74 of 1997 and brought back the Execution Case to his file which was renumbered as Execution Case No.1 of 1999. While the Execution Case was pending in the Court of learned District Judge, decree holder-petitioner on 03.04.2008 filed an application in the said Execution Case under Order 21, Rule 17 read with Section 151 of the Code of Civil Procedure for amendment of the Execution Petition with a calculation sheet for passing an order of interest till realization of the money.

The respondent filed an application for time on 07.05.2008 to enable them to file written objection against the said amendment petition. But the learned District Judge without giving the respondent any opportunity for hearing allowed the petition for amendment by the order dated 07.05.2008. The relevant provisions of Order 21, Rule 17 reads as under:-

R.17. Procedure on receiving application for execution of decree. (1) On receiving an application for the execution of a decree as provided by rule 11, sub-rule (2), the Court shall ascertain whether such of the require-ments of rules 11 to 14 as may be applicable to the case have been complied with; and, if they have not been complied with, the Court shall allow the defect to be remedied then and there or within a time to be fixed by it. If the defect is not remedied within the time fixed the Court may reject the application.
(2) Where an application is amended under the provisions of sub-rule (1), it shall be deemed to have been an application in accordance with law and presented on the date when it was first presented.
(3) Every amendment made under this rule shall be signed or initialed by the Judge.
(4) When the application is admitted, the Court shall enter in the proper register a note of the application and the date on which it was made, and shall, subject to the provisions hereinafter contained, order execution of the decree according to the nature of the application:
Provided that, in the case of decree for the payment of money, the value of the property attached shall, as nearly as may be, correspond with the amount due under the decree.”

Order 21, Rule 11(2) provides for written application for execution of decree which shall be in writing signed and verified by the applicant or by some other persons proved to the satisfaction of the Court to be acquainted with the facts of the case and shall contain in a tabular form, some relevant particulars, including the number of the suit, names of the parties, the date of the decree, the amount of the interest (if any) due upon the decree or other relief granted thereby, together with particular of any cross decree, the amount of cost (if any) awarded etc. 

It appears that the executing court by the order dated 07.05.2008 allowed the amendment of execution petition to the effect that the judgment-debtor-defendant-respondent is to pay interest from the date of the order till realization. In this context it is pertinent to reproduce the operating part of the exparte order dated 03.04.1983 which reads as under:-
 
“Claim Proved.
Ordered.
That the Misc. Case be allowed exparte with cost. The property at schedule-‘B’ is and be hereby attached. The O.P. shall pay up the entire dues within 60 days from the date failing which the property at schedule ‘B’ shall be put on sale for realisation of the dues payable by the O.P.
Sd/- A. Jaman,
District Judge, Mymensingh.”
 
On perusal of the aforesaid order it appears that the learned District Judge did not pass any order directing the judgment-debtor-defendant-respondent to pay interest from the date of the order till realization. In this context it is pertinent to reproduce section 34 of Code of Civil Procedure,1908 below:

“34.(1) Where and in so far as a decree is for the payment of money, the Court may, in the decree, order interest at such rate as the Court deems reasonable to be paid on the principal sum adjudged, from the date of the suit to the date of the decree, in addition to any interest adjudged on such principal sum for any period prior to the institution of the suit, with further interest at such rate as the Court deems reasonable on the aggregate sum so adjudged, from the date of the decree to the date of payment, or to such earlier date as the Court thinks fit.
(2) Where such a decree is silent with respect to the payment of further interest on such aggregate sum as aforesaid from the date of the decree to the date of payment or other earlier date, the Court shall be deemed to have refused such interest, and a separate suit therefore shall not lie.”
 
While interpreting section 34 of the Code of Civil Procedure,1908 this Division in Sonali Bank vs. Mahbubul Amin and another, 42 DLR (AD) 107 stated as under:

“11. It will be seen that sub-section (1) above speaks of separate interest for three different stages which may be awarded by a Court where and in so far as a decree is for the payment of money. The Court may order interest to be paid on the principal sum adjudged (1) from the date of suit to the date of the decree, in addition to (2) any interest adjudged on such principal sum from any period to the institution of the suit with (3) further interest on the aggregate sum so adjudged from the date of the decree to the date of payment, or to such earlier date as the Court thinks fit.
12. Sub-section (2) clearly refers to the interest mentioned in item (3) above i.e. interest from the date of the decree and says that if a decree is silent with respect to such interest the Court shall be deemed to have refused the same, and a separate suit therefore shall not lie.”
 
In Kadam Rosul Silicate Works and others vs. Sonali Bank, 42 DLR (AD) 294 it was reiterated in para 10 as under:

“The terms of the decree being silent as to further interest or any interest, it must be held under section 34(2) CPC that the court has refused such interest.”
 
Interest under section 34 of CPC is not a statutory right payment of which can be claimed by the decree holder automatically as held by this Division in Janata Bank vs. M./S. Wahid Enterprise (Pvt) Ltd., 1995 BLD (AD) 51 in the following terms:

“As to interest under section 34 of the Code of Civil Procedure or as to cost of the suit and appeal plaintiff does not have any statutory right to be paid automatically. The discretion lies with the Court.”
 
Above decisions of this Division clearly show that the High Court Division rightly found that the order dated 07.05.2008 allowing the prayer for amendment of the application for execution suffers from error of law which has resulted in an error in the decision occasioning failure of justice. Accordingly, the Rule was made absolute.
 
In view of the aforesaid findings and observations we are of the view that there is no illegality in the impugned judgment and order passed by the High Court Division calling for any interference by this Court. In the premises, we do not find any merit in the leave petition.
 
Accordingly, the leave petition is dismissed.
 
Ed.