Case No: Civil Petition for Leave to Appeal No. 174 of 1998
Judge: ATM Afzal ,
Court: Appellate Division ,,
Advocate: Moksudur Rahman,Sharifuddin Chaklader,,
Citation: 51 DLR (AD) (1999) 35
Case Year: 1999
Appellant: Calmare Navigation Co. Ltd.
Respondent: Mohammad Nurul Hoque and another
Subject: Civil Law,
Delivery Date: 1998-3-3
ATM Afzal CJ
Latifur Rahman J
Md. Abdur Rouf J
BB Roy Choudhury J
Calmare Navigation Co Ltd.
Mohammad Nurul Hoque and another
3rd March, 1998.
The Code of Civil Procedure, 1908 (V of 1908)
Order XXI, rule 26
Execution of a decree can not be stayed after disposal of the appeal on the plea of pending contempt proceedings connected with the parties and the property in dispute………….(5)
Moksudur Rahman, Senior Advocate, instructed by SH Siddique, Advocate-on-Record — For the Petitioner.
Sharifuddin Chaklader, Advocate-on-Record — For the Respondent No. 2.
Not represented—Respondent No. 1.
Civil Petition for Leave to Appeal No. 174 of 1998.
(From the judgment and order dated January 22, 1998 passed by the High Court Division, Dhaka in Civil Rule No. 282(f) of 1997 Contempt).
ATM Afzal CJ.
This petition is from an order passed by a Division Bench of the High Court Division allowing an application for modification of an earlier order.
2. Relevant facts are like this: the petitioner filed a First Appeal, No.253 of 1993, in the High Court Division and obtained an order of Stay of the connected Money Execution Case, No.10 of 1993, of the First Court of Subordinate Judge, Chittagong. The petitioner obtained a Rule for contempt of court against the respondents for alleged violation of the stay order passed by the High Court Division, in Contempt Case No. 34 of 1997, which is still pending. The first appeal was allowed in part and a leave petition filed against the judgment of the High Court Division by the petitioner has since been dismissed on 17-11-97.
3. The respondent No.2 filed an application for modification of the order dated 29-6-97 by which Rule was issued and some incidental order was passed in the contempt matter. The purport of the application was to obtain an order vacating the order staying proceedings of the Money Execution Case No.10 of 1993. The application, as already noticed, has been allowed by the impugned order.
4. Moksudur Rahman, learned Advocate for the petitioner, submits that the impugned modification order should not have been made during the pendency of the contempt case because decree-holder-respondent No.2 would execute the decree and realise the disputed money causing great prejudice to the petitioner.
5. We have not been able to understand either the impugned order or the submission made by the learned Advocate. The execution case was stayed, obviously, pending disposal of the first appeal. Now that the first appeal has been heard and disposed of and the petitioner’s application for leave to appeal from the judgment of the High Court Division having been dismissed, there is nothing to prevent the execution case to proceed. The pendency of the contempt case has no nexus with the execution case. Therefore, we do not see why an application for modification of the order passed in the contempt case was necessary nor we understand the reason of the submission of the learned Advocate. If the respondents have violated any order of the High Court Division, they will face the consequence but the pendency of the contempt matter has nothing to do with the proceedings of the execution case. The order of stay of the execution case was not passed in the contempt matter but in the first appeal. It, therefore, appears that the whole exercise leading to this application was unnecessary and the submission of the learned Advocate is devoid of any reason.
The petition is, accordingly, dismissed.