Ganashashtha Kendra Vs. Md. Harashatullah and others 2018 (1) LNJ 41

Case No: Civil Revision No. 3750 of 2015

Judge: Md. Nuruzzaman. J.

Court: High Court Division,

Advocate: Mr. Abdur Razzaque Khan, Mr. Md. Abdus Samad,

Citation: 2018 (1) LNJ 41

Case Year: 2017

Appellant: Ganashashtha Kendra

Respondent: Md. Harashatullah and others

Subject: Civil Law

Delivery Date: 2018-02-15

HIGH COURT DIVISION

(CIVIL REVISIONAL JURISDICTION) 

Md. Nuruzzaman, J.

And

S. H. Md. Nurul Huda Jaigirdar, J

Judgment on

02.08.2017 and 03.08.2017

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Ganashashtha Kendra, a Charitable Trust, House No. 14/E, Road No.6, Dhanmondi Residential Area, Dhaka, represented by its Chairman Dr. Jafarullah Chowdhury and others

 . . . Judgment-Debtor-Petitioners

-Versus-

Md. Harashatullah and others

...Decree-holder-Opposite-Parties

Code of Civil Procedure (V of 1908)

Section 34

Order 26, Rule 11

The provision of Rule 11 of Order 26 does not come within the ambit to appoint any Commissioner to calculate the interest which has already mentioned in the instant judgment and decree passed on 14.11.1995 and 18.11.1995 respectively as interest would be 18% per annum of the decretal amount. Decreetal amount also include the interest which cannot be separated from the decree but fixing and calculation of the interest by a Commissioner i.e. The Chartered Accountant in a execution case does not come within the purview of the Rule 11 of Order 26 of the Code of Civil Procedure. Rather, according to section 34 of the Code of Civil Procedure as discretionary relief the court can decide the interest. If in the prayer of the suit there is no rate of interest, even if, there is a rate of interest in prayer, even then, the court can apply its discretion for equity and justice. . It is matter of judicial discretion that should be exercised by the judge himself not to delegate that power to any Commissioner. The provision of the Rule 11 of Order 26 does not empower the Commissioner to calculate the interest, however, the said rule specks to examine and adjust the account, but as per the provision of the rule the chartered accountant did not do so. We are therefore, of the view that Commissioner acted beyond the law, as such, it cannot be sustain in law.                             . . .( 26, 27 and 29)

Code of Civil Procedure (V of 1908)

Section 115(1)

This Division cannot pass any order Suo-Motu unless an aggrieved party filed an application seeking redress to this Division. Filing any application in the court who passed the earlier order without challenging the same to the higher legal forum is not only nugatory but it is ill pretax of judgment debtor who want to resist the execution case surely not on good motive but as ill pretax.  . . .(32 and 33)

Jahangir Kabir (Md), Vs. Bangladesh, 48 DLR (AD) 156; Kadam Rusul Silicate Works, 42 DLR (AD) 294; Bangladesh House Building Finance Corporation Vs. Most. Saberaj Khatun, B.C.R 2004 (AD) 293 and Sree Shudhir Chandra Saha and another Vs. Motiran Bewa, 1986 BLD (AD) 182 ref.

Mr. Abdur Razzaque Khan, Sr. Advocate with

Mr. Abdul Barek Chowdhury with

Mr. Md. Ataur Rahman, Advocates

. . . For the petitioners

Mr. S. A. Rahim, Senior Advocate with

Md. Md. Abdus Samad, Advocate

. . . For the Opposite Party No.1-3

Mr. Syed Hasan Zobair, with

Mr. Md. Ashikur Rahman, Advocates

. . . For the Opposite Party No.6

JUDGMENT

Md. Nuruzzaman, J: On an application under Section 115(1) of the Code of Civil Procedure, this Rule was issued calling upon the opposite parties to show cause as to why the impugned judgment and order dated 22.09.2015 passed in Money Execution Case No. 54 of 2008 by the  Joint District Judge, 7th Court and Arbitration Judge, Dhaka accepting the report of the Commissioner, Chartered Accountant, without considering the objection and allowing application for amendment of the Money Execution Case altering the decreetal amount from Tk. 37,11,64,950/- with interest of 18% to Tk. 1,47,26,47,057.00 and order dated 06.10.2015 for steps on auction sale should not be set aside and/or such other or further order or orders passed as to this Court may seem fit and proper.

2.            The material facts, relevant for disposal of the instant Rule in short are that the opposite party Nos. 1-3 as plaintiffs filed Money Suit being No. 25 of 1989 before Joint District Judge, 1st Court, Dhaka. Eventually on transfer it was renumbered as money Suit No. 17 of 1994 in the Court of Joint District Judge, Commercial and Artha Rin Adalat No.1, Dhaka, against the defendants who are the petitioner in the instant revisional application for realization of money for an amount of Tk.  2,19,31,96/85 and got decree for an amount of Tk. 1,60,69,750/- vide judgment and decree dated 14.11.1995 with 18% interest per annum with effect from  the date of filing of the suit till realization of decreetal amount with cost of Tk. 20,248/- on contest. The defendant as appellant preferred the First Appeal No. 55 of 1986 before the Hon’ble High Court Division of the Supreme Court of Bangladesh, however, the same was dismissed on 30.11.2005.

3.            The defendant appellant being aggrieved by the judgment and decree of the High Court Division preferred Civil Petition for Leave to Appeal being No. 298 of 2006 which was also dismissed on 14.05.2008 on contest. Thereafter, the defendant appellant as petitioner filed a review application before the Hon’ble Appellate Division being Review Petition No. 129 of 2008 which was dismissed on 21.11.2008.

4.            The respondent decree holder by dint of the judgment and decree dated 14.11.1995 filed Money Execution Case No. 01 of 1996 on 13.02.1996 for realization of decreetal amount of                       Tk. 1,60,69,750/- against the judgment debtor. However, eventually the said money execution case was transferred to the Court of Joint District Judge, 4th Court, Dhaka for disposal. On received the record of Money Execution Case No. 01 of 1996 the same was renumbered in the Court of Joint District Judge, 4th Court, Dhaka as Money Execution Case No. 54 of 2008. Lastly it was transferred in the Court of Joint District Judge, 7th Court and Arbitration Court, Dhaka. The Money Execution Case No. 54 of 2008 while was pending before the Joint District Judge, 7th Court and Arbitration Court, Dhaka the decree holder all on a sudden filed an application on 27.07.2010 behind the back of the petitioner for enhancement of the amount of Tk. 38,32,34,784.80 instead of Tk. 1,60,69,750/-. The executing Court upon ex-parte hearing allowed the said application.

5.            Mr. Abdur Razzak Khan with Mr. Abdul Barek Chowdhury and Mr. Ataur Rahman, the learned Advocates appearing on behalf of the judgment-debtor petitioner.

6.            He has submitted that in such facts and circumstances the present petitioner as judgment debtor filed an application under Order 26 Rule 11 of the Code of Civil Procedure for ascertaining the interest with effect from 15.06.1989 from the date of filing of the suit. However, the learned Joint District Judge, 7th Court and Arbitration Court, Dhaka rejected the said application by his order dated 04.05.2014 without considering the facts and circumstances of the case.

7.            The judgment debtor feeling aggrieved by order dated 4.5.2014 as petitioner filed Civil Revision No. 2099 of 2014 in the High Court Division of the Hon’ble Supreme Court of Bangladesh and obtained a Rule with an order subject to the terms and condition laid down to the Rule. The said Civil Revision was heard by a Division Bench and was pleased to dispose of the Rule upon direction for appointing a well known and reported Chartered Accountant for calculating interest.

8.            The decree holder without serving any copy filed an application before the executing Court on 25.05.2015 for appointment of one Chartered Accountant for ascertaining the interest as per direction of the Hon’ble High Court Division. The said application was allowed behind the back and knowledge of the petitioner. Thereafter, the Chartered Accountant also without serving any notice to the petitioner behind the back of the petitioner ascertained the interest abruptly and submitted the report on 08.06.2015 without providing any copy of the report to the judgment debtor petitioner claiming Tk. 10,000/- of commission fee and also submitted a bill for the same amount.

9.            The decree holder on 07.07.2015 filed an application for amendment of the application of Money Execution Case No. 54 of 2008 and date was fixed on 21.07.2015. The judgment debtor petitioner filed an application praying time for filing the written objection stating the reasons that the Chartered Accountant did not provide any copy of the report to them. Since the judgment debtor did not get any copy, so, filed an application for certified copy of the report of the Chartered Accountant. However, the Judge of the executing Court did not pass any order to supply the certify copy. Therefore, the judgment debtor could not prepare any objection. The judgment debtor find no other alternative on 29.07.2015 without perusing the Chartered Accountant’s report filed objection against the report and also filed an application against the amendment of the money execution case. The learned Lawyer of the judgment debtor also appraised the Court that they have filed Civil Petition for Leave to Appeal before the Appellate Division against the judgment and order of the High Court Division which is pending. Though the judgment debtor appraised the Court the facts and circumstances as has been narrated hereinabove. But the Executing Court without considering the aforesaid application accepted the report of the Chartered Accountant and allowed the application for amendment of the same under Section 153 of the Code of Civil Procedure by order dated 22.09.2015.

10.        The judgment debtor being aggrieved by the impugned order dated 22.09.2015 as petitioner preferred this revisional application and obtained the instant Rule with an order of stay.

11.        Mr. Abdur Razzak Khan, the learned Advocate took us through the impugned judgment and order dated 22.09.2015 passed by the executing Court. Mr. Khan after placing the impugned judgment and order he has pointed that the executing Court without considering the objection filed by the judgment debtor against the report of the Chartered Accountant and application for amendment of the petition of decree execution case and without considering the observation and direction of the Hon’ble High Court Division accepted the report of the Chartered Accountant giving opinion  that the report of the Chartered Accountant is self explanatory, and, as such, the objection kept with the record and for the ends of justice the application for amendment of the execution case is allowed and thereby committed serious error of law which calls for interference by this Court. He has further submitted that the executing Court acted beyond the direction of the High Court Division passed in Civil Revision No. 2099 of 2014 accepting the calculation of the Chartered Accountant which was calculated not in accordance with law rather referring a Rules of Bangladesh Bank thereby committed serious error of law and, as such, the impugned judgment and decree is liable to be set aside. Mr. Khan referring the supplementary affidavit dated 13.05.2017 clearly pointed that they have calculated interest for the period of 15.06.1989 to 30.11.2008 which amounts to Tk. 5,62,89,912.78 and that has already been paid by installments as per direction of this Court on the following manner:

(a)   Tk.2,00,00,000.00 vide Challan No. 3886, dated 17.09.2014.

(b)   Tk.1,00,00,000.00 vide Challan No.11229. dated 29.03.2015.

(c)    Tk.2,62,84,299.38 vide Challan No.7841, dated 29.04.2017 in the Bangladesh Bank.

As such the total payable interest by the judgment- debtor in terms of the decree has already been paid fully and no amount remains outstanding.

12.        Therefore, the calculation done by the Chartered Accountant @ Bank compound interest instead of simple interest not in accordance with    law. Mr. Khan in support of his submissions cited the decision to the case of Jahangir Kabir (Md.)–vs- Bangladesh, represented by the Secretary, Ministry of Home Affairs reported 48 DLR (AD) 156, to the case of Bangladesh House Building Finance Corporation –vs- Most. Saberaj Khatun reported BCR (AD) 2004, 293 and to the case of Sree Shudhir Chandra Saha and another –vs- Motiran Bewa being dead her heirs Nazmun Rahman Sarker and others reported BLD (AD) 1986, 182.

13.        On the other hand the opposite party Nos. 1-3 contested the Rule by filing counter affidavit denying the material allegations made in the revisional application.

14.        Mr. S. A. Rahim, the learned Senior Advocate appearing on behalf of the opposite party Nos. 1-3 has submitted that the opposite party Nos. 1-3 as plaintiffs filed Money Suit No. 25 of 1989 in the Court of Subordinate Judge, 1st Court (now Joint District Judge) for recovery of money. Eventually, the said money suit was transferred to the Commercial and Artha Rin Adalat, Court No.1, Dhaka wherein it was renumbered as Money Suit being No. 17 of 1992. The learned judge of the Commercial and Artha Rin Adalat No.1, Dhaka, by his judgment and decree dated 18.11.1995 decreed the suit of Tk. 1,60,69,750/- and directed the defendant to repay the same with interest of 18% from 15.06.1989 till realization of decreetal amount within 90 (ninety) days from the date of decree failing which the plaintiff would be legally entitled to recovery the same as per the Bank’s Law.

15.        The defendant as appellant preferred First Appeal No. 55 of 1996 against the judgment and decree dated 30.11.2005 after hearing both the sides a Division Bench of the Hon’ble High Court Division of the Supreme Court of Bangladesh was pleased to dismiss the appeal. Thereafter the defendant appellant as petitioner being aggrieved by the judgment and decree dated 30.11.2005 preferred a Civil Petition for Leave to Appeal being No. 498 of 2006. The Hon’ble Appellate Division was pleased to dismiss the Leave to Appeal on 14.05.2008 affirming the judgment and decree of the High Court Division as well as the trial Court. Lastly the defendant as petitioner preferred a review petition being Review Petition No. 129 of 2008. The Hon’ble Appellate Division after hearing the review petition on 21.11.2008 dismissed the same. Thereafter the opposite party Nos. 1-3 as decree holder filed a Money Execution Case No. 01 of 1996 to execute the decree. On the 2nd day of February, 2010 the decree holder filed an application under Section 153  of the Code of Civil Procedure for amendment of the petition of execution case. The learned Judge of the execution case after hearing both the parties allowed the amendment application vide order No. 15 dated 29.09.2010. However, the defendant judgment debtor did not challenge the above order dated 29.09.2010. The judgment debtor since failed to set aside the decree through Court published Auction Notice on 07.01.2013 for realization of the money of Tk. 37,11,64,025/- as on 13.11.2008. However, the judgment debtor filed revisional application being No. 112 of 2013 challenging the publication of the auction notice and obtained the Rule with an order of stay. After hearing the parties a Division Bench of the High Court Division was pleased to discharge the Rule on 25.02.2013. However, again on 29.05.2014 auction notice was published but the defendant judgment debtor with an ill motive again to stop the auction filed Civil Revision No. 2099 of 2014 to ascertain the interest of the decreetal amount @ 18% per annum.

16.        A Division Bench of this Court on 01.06.2014 issued a Rule and stay all further proceedings of the execution case for a period of 4(four) months subject to payment of Tk. 5,62,84,299.38 which would be paid in equal 2 installments in default the order of stay shall stand vacated.  However, the judgment debtor failed to comply with the order of the Court dated 01.06.2014.

17.        Thereafter, without complying with the order of the Court again filed application for permission to deposit Tk. 02 core. A Division  Bench after hearing the same On 02.09.2014 allowed the application. After depositing the amount on 01.10.2014 further directed the judgment debtor to pay the remaining taka in 4 installments. On the 2nd count the judgment debtor also failed to comply with the order of the Court. The above mentioned civil revision was disposed of on 06.05.2015 by a Division Bench.

18.        Mr. S.A. Rahim has further submitted that on 25.05.2015 as per direction of the Hon’ble High Court Division the executing Court appointed “j¢a Hä ®L¡w ” a Chartered Accountant to calculate interest as per the order of the High Court Division. The appointed Chartered Accountant calculated interest as per provision of law of the country and prepared a report and the same was submitted before the Executing Court. The Executing Court forwarded the same to the Hon’ble High Court Division. The executing Court after hearing both the parties and considering the objection of the opposite parties by order dated 22.09.2015 accepted the report of the Chartered Accountant and on the same day allowed the application filed by the decree holder in the execution case.

19.        Mr. S.A. Rahim very candidly submitted that the instant revisional application has been preferred against the judgment and order dated 22.09.2015 accepting the Advocate commission report and thereby amending the petition of execution case inserting/ altering the amount of Tk. 1,47,26,47,057.00 instead of Tk. 37,11,64,950/- which has been calculated by the Chartered Accountant not at the instance of the decree holder but surely judgment debtor who filed the application under Order 26 Rule 11 of the Code of Civil Procedure in the executing Court which was rejected. The judgment debtor again filed revisional application before the Hon’ble High Court Division and the Hon’ble High Court Division directed to appoint a Chartered Accountant. Therefore, the executing Court accepting the report of the Chartered Accountant committed no error of law which does not calls for any interference by this Court. He further categorically pointed that the point in favour of the decree holder not only the judgment and order of 22.09.2015. However, the executing Court accepted the earlier amendment application of Decree Holder and directed the judgment debtor to pay the same by order No. 50 dated 29.09.2010 which was not challenged by judgment debtor in accordance with law in any legal forum. Therefore, the present revisional application is totally incompetent to provide any favourable relief in accordance with law which does not calls for interference by this Court.

20.        According to Mr. S. A. Rahim the judgment debtor with ill motive ones again tried to dislodged the settled matter which was fixed by order dated 29.09.2010 by way of the various illegal pretext. In doing so at his instance the amount enhanced as per Chartered Accountant Commissioner’s report up to Tk.1,47,26,47,057/- as per direction of this Court which cannot be questioned by the judgment debtor but to pay  the same amount to the decree holder, the facts and circumstances of the case he prays for discharging the Rule by affirming the judgment and order dated 27.09.2015 passed by the executing Court.

21.        We have anxiously considered the submissions advanced by the learned Advocates of the respective parties. We have gone through the impugned judgment and order dated 22.09.2015. We have also perused the judgment and decree of Title Suit No. 17 of 1992 which is Annexure-“A” to the revisional application. We have also perused the judgment and order passed by a Division Bench of this Court on various date passed in Civil Revision No. 2099 of 2014 which are Annexure-“B” to the revisional application. We also perused the Annexures “C”, “D” and “E” which are appended with application for appointment of Chartered Accountant. Application under Section 153 of the Code of Civil Procedure for amendment of the petition of the execution case and written objection filed by the judgment debtor against the report of the Chartered Accountant Annexure-“E(1) and also an written objection against the application under Section 153 of the Code of Civil Procedure. According to the materials on record there is no doubt that the judgment and decree dated 14.11.1995 and 18.11.1995 respectively were affirmed up to the Appellate Division.

22.        Thereafter, the decree-holder filed an application for executing the decree which was numbered as Money Execution Case No. 01 of 1996. In the said execution petition the decree-holder claimed        Tk. 3,53,73,698/- as on 13.02.1996. Eventually the said Money Execution Case No. 01 of 1996 was renumbered as Money Execution Case No. 54 of 2004 in the Court of Joint District Judge and Arbitration Court, 7th Court, Dhaka. The decree holder in the said execution case on 22.02.2010 filed an application under Section 153 of the Code of Civil Procedure for amending the petition of execution case. The learned advocate of the judgment debtor herein petitioner received the copy of the said amendment application and filed Hazira on 07.06.2010 and 18.08.2010. Thereafter, the decree-holder filed the calculation sheet with other papers before the executing Court and after hearing both the sides the executing Court by its judgment and order dated 29.09.2010  allowed the application for amendment and thereby allowed the decree-holder to amend the application to insert the figure of Tk. 37,11,64,950/- as on 30.11.2008. However, it is clearly depicted that the judgment debtor against the order dated 29.09.2010 did not take any steps challenging the said order before any higher Court. Thereafter, the decree holder as per the order of the Court published auction notice on 07.01.2013 in “the Daily Ittefaque” and “Daily Inquilab” for realization of the money mentioning Tk. 37,11,64,950/- at that time the judgment debtor filed a Civil Revision No. 112 of 2013 challenging the order of the executing Court dated 10.10.2011.

23.        The said revisional application was discharged on 25.02.2013. Thereafter the decree-holder again published auction notice on 29.05.2014 in the “Daily Star” and “Daily Noya Digonta” mentioning the earlier outstanding dues of Tk. 37,11,64,950/-. The judgment debtor filed an application before the executing Court under Order 26 Rule 11 of the Code of Civil Procedure for ascertaining the interest by appointing an Advocate Commissioner which was also rejected by the executing Court. At this time the judgment debtor challenged the said order and again also filed revisional application being No. 2099 of 2014 to stop the auction proceedings as well as the order of rejection of the application filed by the judgment debtor under Order 26 Rule 11 of the Code of Civil Procedure. The Civil Revision No. 2099 of 2014 was heard by a Division Bench which was also disposed of directing the trial Court to appoint a Chartered Accountant as commissioner.

24.        In the facts and circumstances we are of the view that it would be better to quote the provision of the Order 26 Rule 11 of the Code of Civil Procedure for the convenience of the discussions and use as ready reference which runs thus:

“Order 26: Commissions to Examine Witnesses. Rule-1-10: …..

Rule-11: Commission to examine or adjust accounts: In any suit in which an examination or adjustment of accounts is necessary, the Court may issue a commission to such person as it thinks fit directing him to make such examination or adjustment.

25.        On perusal of the provision of the above quoted law, it is crystal clear that the provision provides to appoint commission to examine or adjust accounts in a suit, not in an execution case to calculate interest. However, we finds from the impugned judgment and order that the writ was issued to the commissioner without any instruction in other wards not to examine or adjust the accounts in a suit. However, since it was a direction from this Division on an application at the instance of the judgment debtor with consent of the decree holder. So, we cannot say about that order. Nevertheless, we can look into the consequence of the aforesaid order which is surely challenged before this Division by the judgment debtor petitioner. On perusal of the impugned judgment and order it is clearly divulged that the learned judge of the executing Court without discussing and giving any cogent reason only referring the order of this Division accepted the report even though there is a serious objection on behalf of the judgment debtor.

26.        The provision of Rule 11 of Order 26 does not come within the ambit to appoint any commissioner to calculate the interest which has already mentioned in the instant judgment and decree passed on 14.11.1995 and 18.11.1995 respectively as interest would be 18% per annum of the decreetal amount.

27.        Now, we are of the opinion that the decreetal amount also include the interest which cannot be separated from the decree but fixing and calculation of the interest by a commissioner i.e. the Chartered Accountant in a Execution Case does not come within the purview of the Rule 11 of Order 26 of the Code of Civil Procedure. Rather, according to Section 34 of the Code of Civil Procedure as a discretionary relief the Court can decide the interest. If in the prayer of the suit there is no rate of interest, even if, there is a rate of interest in prayer, even then, the Court can apply its discretion for equity and Justice. Therefore, we are of the considered view that it is a matter of judicial discretion that should be exercised by the judge himself not to delegate that power to any commissioner.

28.        Besides, the Chartered Accountant as Commissioner without giving any notice and opportunity of being heard of the Judgment debtor prepared the report and the learned Judge without causing any reasons but opined the same is self-explanatory which is not as per provision of law. 

29.        In that view of the matter we find that writ was issued without specific subject of any matter as per Rule-11 of the order 26 of the Code of Civil Procedure but only to calculate the rate of interest and, as such, the judgment and order dated 22.09.2015 passed by the executing Court accepting the report of the Chartered Accountant is beyond the legal and lawful jurisdiction. More-so, it is not the case of the Judgment debtor to examine and adjust the account nor determine the rate of interest, rather, they prayed for only calculation of the interest as per the decree of the Court. So, we have no hesitation to opine that the provision of the Rule 11 of the Order 26 does not empower the commissioner to calculate the interest, however, the said Rule specks to examine and adjust the account, but as per the provision of the Rule the Chartered Accountant did not do so. We are, therefore, of the view that the Commissioner acted beyond the law, as such, it cannot be sustain in law.

30.        Mr. Khan once again argued that the Court under section 34 of the Code of Civil Procedure can fix the rate of interest. We are not disagree with this submissions, however, in the decree the learned Judge has specifically mentioned the rate of interest would be 18% per annum which was affirmed up to Appellate Division. So, how, we can interfere in the rate of interest as a revisional Court ?. Therefore, such submission has no substance. 

31.        However, this litigation amongst the parties has very chequart history. It cannot be denied that the judgment and order passed by the executing Court vide order No. 50 dated 29.09.2010 ever challenged by the judgment debtor rather, they have took the ill pretext only to impede the execution case. So, we are of the considered view that the execution case must be proceed in accordance with law. It is further be mentioned here that Mr. Khan the learned Advocate for the judgment debtor once again argued that they have challenged the whole order of the execution case because filing of the application before the executing Court under Rule 11, Order 26 of the Code of Civil Procedure has been filed to calculate the interest which would be actual figure in the case as they were not agreed with the order No. 50 dated 29.09.2010. The submission of Mr. Khan is not sustainable in law because after passing the order the executing Court has no jurisdiction at the instance of the Judgment-debtor to re-open its own order.

32.        Furthermore, as per (second amendment) Act No. XXIX of 2003 of the Code of Civil Procedure provision of the section 115 was amended. Therefore, we are of the considered view that this Division cannot pass any order Suo-Motu unless an aggrieved party filed an application seeking redress to this Division. In this regard it would be excellent example and convenient for ready reference to show the difference of the previous provision of section 115 and after amendment of the same. So, we reproduced the amended section 115(1) of the Code of Civil Procedure and previous one of the same section respectively which runs as follows:

S.115- Revision –[(1) the High Court Division may, on the application of any party aggrieved, call for the record of any suit or proceeding in which a decree or an order has been passed by a Court of District Judge or Additional District Judge, or a decree has been passed by a Court of Joint District Judge, Senior Assistant Judge or Assistant Judge, from which no appeal lies; and if such Court Appears to have committed any error of law resulting in an error in such decree or order occasioning failure of justice, the High Court Division may, revise such decree or order and, make such order in the suit or proceeding, as it thinks fit.

Section 115(1) before amendment: The High Division may call for the record of any case which has been decided by any Court subordinate to the High Court Division and in which no appeal lies thereto, and if such subordinate Court appears to have committed any error of law resulting in error in the decision occasioning failure of justice, the High Court Division may make such order in the case as it thinks fit

33.        In this regard we must say that the judgment debtor without taking legal course and challenging the Order No. 50 dated 29.09.2010 in accordance with law once again he resorted to resist the execution case as it appears from the facts and circumstances of the present case. In this connection we must opined that filing any application in the Court who passed the earlier order without challenging the same to the higher legal forum is not only nugatory but it is a ill pretext of judgment debtor who want to resist the execution case surely not on good motive but as ill pretext.

34.        In that view of the matter we are of the considered view that the submissions advanced by the learned Advocate for the judgment debtor claiming that they have challenged the whole proceedings including earlier order No. 50 dated 29.09.2010 does not bear any substance.

35.        We have gone through the referred decision cited by Mr. Khan, the learned Advocate for the petitioner. On perusal the decisions 48 DLR (AD) 156 the case of Jahangir Kabir (Md) it appears that it was a case of an employee for his pensionary benefit, in 42 DLR (AD)294 to the case of Kadam Rusul Silicate works, it also appears  that Money suit relating bank loan was decreed on defendants admission of claim minus the amount already paid. There was no direction to pay any interest. Terms of decree being silent as to further interest or any interest, in B.C.R- 2004 (AD) 293 Bangladesh House Building Finance Corporation case their lordships considered the facts on a compassionate ground as a case of exception because respondent was lonee of the House Building Finance Corporation, 1986 BLD (AD) 182 Shudir Chandra Shaha and another’s it was a case of estoppels and it has held that no estoppels against the statute. We are not disagreeing with those settled principles as enunciated by the Hon’ble Appellate Division but those principles cannot be applicable in the case in hand because the facts, circumstances of the case is quite distinguishable from the cases cited hereinabove.

36.        Hence, we are unable to accept the submission of the learned Advocate for the petitioner. The discussion made hereinabove we find that the report submitted by the Chartered Accountant calculating the interest was not in accordance with law nor it was the claim of the decree holder as per their own claim rather it has suffered from legal infirmity and flagrant violation of the provision of law as there is no account in the writ as reference to examine by the Chartered Accountant as Commissioner which calls for interference by this Court.  

37.        Therefore, we are of the view that the impugned judgment and order dated 22.09.2015 must be set aside with commissioner’s report as calculated by the Chartered Accountant.

38.        In that view of the matter we find substance in the submissions of the learned Advocate for the judgment debtor so far it relates to the report of the Commissioner vide impugned order dated 22.09.2015 against accepting the same.

39.        Thus, the Rule having merit, it succeeds.   

40.        Accordingly, the Rule is made absolute. The judgment and order dated 22.09.2015 is hereby set aside.       

41.        However, the executing Court is directed to proceed with the execution case as per decree in accordance with law expeditiously.

42.                   The office is directed to communicate the judgment along with the Lower Court Records at once.

Ed.



Civil Revision No. 3750 of 2015