Mohammad Selim @ Salimullah and others Vs. Sonali Bank, 3 LNJ (2014) 321

Case No: Civil Revision No. 1314 of 2003

Judge: M. Moazzam Husain,

Court: High Court Division,,

Advocate: Mr. A.H.M. Mushfiqur Rahman,Mr. Saidur Rahman,Mrs. Fatema Begum,,

Citation: 3 LNJ (2014) 321

Case Year: 2014

Appellant: Mohammad Selim

Respondent: Sonali Bank

Subject: Execution Decree,

Delivery Date: 2010-10-26


HIGH COURT DIVISION
(Civil Revisional Jurisdiction)
 
Sheikh Abdul Awal, J.
And
M. Moazzam Hussain, J.

Judgment on
26.10.2010
  Mohammaed Selim @ Salimullah and others
. . .Petitioner
Versus
Sonali Bank, Panchagarh Branch, Panchagarh
. . . Opposite Party
 

Code of Civil Procedure (V of 1908)
Section 48(2)
Sub-section (2) of section 48 of the CPC is an overriding clause that empowers executing court to order execution even beyond 12 years’ time if it is found that the judgment-debtor, by fraud or force, has prevented the decree-holder from executing the decree.
Sub-Section (2) of Section 48 of the Code, as is quoted above, is an overriding clause that empowers executing court to order execution even beyond 12 years’ time if it is found that the judgment-debtor, by fraud or force, has prevented the decree-holder from executing the decree at some time within the period of 12 years immediately before the date of application. The scope and ambit of ‘fraud’ for the purpose of the section  is now settled more or less . . .(17)
Power of the court appears to be spelt out in no uncertain terms that if the decree-holder is found to be prevented by the judgment-debtor by fraud or force from taking out execution it is competent in its discretion to override the 12 years time prescribed by law and direct execution of decree anytime beyond the limitation . . . (21)

Limitation Act (IX of 1908)
Article 182
Continued insanity of the decree-holder, a ground for allowing application for execution beyond 3 years provided by Article 182 of the Limitation Act finally exceeding 12 years outer limit provided by section 48 of the CPC.
The above decision of the Appellate Division came in the factual background of condoning the delay in making petitions for execution beyond 3 years time provided by Article 182 of the Limitation Act finally exceeding the outer limit of 12 years provided by Section 48 of the Code by the trial court on ground of continued insanity of the decree-holder and affirmed by the High Court Division in revision holding that Section 48 of the Code did not have application in the case. . . . (13)

AIR 1935 Patna 380, Biswanath Prasad Mahtha & another v Lachhmi Nrayan; 19 DLR (SC) 433, Saifur Rahman & others v Haidar Shah & another; 36 DLR (AD)5, Bangladesh Jatya Samabaya Bank v Sangbad Daily Paper& others;  ADC (Rev) Pabna v A. Halim Miah, 48 DLR (AD) 141; Gobardhan v Daudayal AIR1931 All 301; Raj Sham v Damar, 11 CWN 440; Adaikappa v Netsan, AIR 1931 Mad 381 and Abdul Khadir, P. v Ajiyar Ahmmad & others 35 ILR Mad 670, ref.
 
Mr. A.H.M. Mushfiqur Rahman, Advocate 
....For the petitioners.

Mr. Saidur Rahman with
Mrs. Fatema Begum, Advocates.
....For the opposite party.

Civil Revision No. 1314 of 2003
 
JUDGMENT
M. Moazzam Husain, J.
 
This rule was issued at the instance of the judgment- debtor petitioner calling in question an order dated 13.11.2002 passed by the Joint District Judge, Artha Rin Adalat No.1, Panchagarh, in Money Execution Case No. 8 of 2002.

The backdrop of facts giving rise to this rule, in short, is that the decree-holder opposite party obtained on 13.9.1988 a money decree of Tk.2, 36,761.50 against the present petitioner No.1 in Money Suit No.2 of 1988 passed by the Court of the Subordinate Judge, Panchagarh. The suit was for realization of Tk.1, 93,472.50 taken by the petitioner No.1 (judgment-debtor) from the opposite party Bank (decree-holder) against a small oil mill project. Pursuant to failure of the judgment-debtor to pay off the money the Bank initiated Money Execution Case No. 21 of 1993 in the court of Subordinate Judge, Artha Rin Adalat No.1 Panchagarh. During pendency of the execution case the judgment-debtor along with his two full brothers (Petitioner Nos. 2 and 3) filed on 29.1.1994 a joint petition (Annex-B) in the execution case stating, inter alia, that following a negotiation between the judgment-debtor, his brothers and the highest authority of the Bank the terms of the loan was re-scheduled with remission of the interests.  His brothers mortgaged a piece of land of their own as a matter of security to the loan and executed irrevocable power of attorney in favour of the bank. In view of the development he prayed, he might be allowed easy installments to pay of the outstanding dues on the loan account. Learned judge passed an order on 30.1.1994 disposing of execution case in terms of compromise allowing five years’ time to pay off the loan money with 3-monthly installments.

The 5 years’ time-frame expired on 30.1.1999 but the dues were not paid by the judgment-debtor on various excuses.  The decree-holder Bank was ultimately led to file  another application on 26.6.2002 for execution which gave rise to Execution Case No. 8 of 2002 in the court of the Joint District Judge and Artha Rin Adalat No.1, Panchagarh, this time for realization of Tk.9, 74,985/-. The present petitioner along with his said two brothers appeared in the execution case and filed a joint written objection on 28.9.2002 denying the liability essentially on the ground of limitation.  On 13.11.2002 an application was filed by the judgment-debtor asking for dismissal of the execution case basically on two grounds, namely, that the execution case was barred by limitation and that inclusion of his two brothers in the execution case is illegal as they were not party to the suit.

The application was heard by the learned  Joint District Judge and upon hearing learned Judge rejected the same by his impugned order dated 13.11.2002 with observations, inter alia, that the judgment-debtor  paid Tk.2,06,000/-. He lastly paid Tk.500/- on 31.1.2001. The amount Tk.9, 74,925/- is still outstanding which the judgment-debtor is liable to pay as per the conditions of the compromise. 

The judgment-debtor and his said two brothers obtained this rule challenging the aforesaid order of rejection on the common grounds agitated before the execution court.

Mr. Mushfiqur Rahman, learned Advocate appearing on behalf of the petitioners submitted at the outset that his case lies in the question of limitation and he was not inclined to focus much on the other point raised in the revisional application. Mr. Mushfiq submits by way of illustration that the decree was passed on 13.9.1988 and after 5 years from the date of decree an application was made for execution which gave rise to Execution Case No. 21 of 1993.  On the compromise petition filed on 19.1.1994 the learned Judge passed his order on 30.1.1994 allowing the petitioner to pay off the outstanding dues within 5 years by 3-monthly installments. Five years’ time allowed by the court elapsed on 30.1.1999 allegedly without full payment of the dues.  No steps for realization of money were taken by the Bank until 26.6.2002 on which date aforesaid execution case i.e., Execution Case No. 8 of 2002, was filed. This, Mr. Mushfiq submits, means that the second  execution case was filed after 13 years 9 months from the date of decree; eight and half months from the date of disposal of the first execution in 1994 and at least 3 ½ years after the expiry  of 5 years’ time-frame allowed by court. Therefore, he insisted, the execution case is plainly barred by limitation in view of Article 182 of the Limitation Act read with Section 48 of the Code of Civil Procedure, shortly, “the Code”. In support of his contention  Mr. Mushfiq referred to the case of Bangladesh Jatio Samabaya Bank Limited v. Sangbad Daily Papers and other reported in 36 DLR 5 and another case ie, ADC Revenue, Pabna v. Abdul Halim Miah reported in 48 DLR (AD), 141.

Mr. Saidur Rahman learned Advocate appearing on behalf of the opposite party does not seem to oppose or controvert the sequence of facts presented by Mr. Mushfiqur Rahman. His contention is that the case is not barred by limitation in that where a decree or order directs any payment of money at a certain date the time limit is 12 years and computation of time starts from the date of default not from the date of decree or order.   The second line of argument sought to be advanced by him is that his case is saved from the bar of limitation by virtue of Sub-section (2) (a) of Section 48 of the Code which says, inter alia, that if the decree-holder is prevented by the judgment-debtor from executing the decree by fraud or force the court is competent to order execution even after 12 years provided by Section 48 (1) (b) of the Code.

In his bid to make out a case of ‘fraud’  Mr. Saidur Rahman urged upon us to take notice of the conduct of the judgment-debtor  from the date of decree down to the date of filing the second execution case in 2002. He submits that the loan was taken against a small project under a special scheme of the Bank. It needs no mention that in all cases of loan against industrial project the Bank as financing institution naturally remains interested more in the success of the project than in ready realization of money.   The judgment-debtor, he argued, taking advantage of the positive attitude of the Bank resorted to cunning devices from the outset to avoid payment. Soon after the decree was passed he began to overplay his sincerity to pay off the loan should the bank go soft on him. He set up plea that his mill was going sick and unless the interest was remitted and the loan terms were re-scheduled the project might fail and in the event none of the parties would benefit. The judgment-debtor, Mr. Rahman argued, in his bid to deceive the bank moved up to the Board of Directors well within 3 years’ from decree and succeeded in persuading the authority about his bona fide by promising  fresh-security against the loan through mortgage of land as mentioned above. The highest authority of the Bank stepped into the trap set by the judgment-debtor and after long negotiations remitted the interest of all kinds and re-scheduled the terms of the loan instead of taking recourse to execution process. 

Mr. Rahman further contended that the judgment- debtor by reference to the re-scheduling of the loan as above filed the so-called compromise petition in court and asked for easy installments for payment.  Learned court allowed five years’ time with installments for payment which ended in January, 1999. The judgment-debtor continued with his secret design to deceive the bank and kept giving promises to pay the dues. Finally on 31.7.2001 he paid Tk. 500/-as a gesture of his pretended good intention. The bank this time got disillusioned and realized the hidden design of the judgment-debtor to deceive the bank and finally brought the second execution case on 26.6.2002. All the incidents and conduct, Mr. Rahman contended, can only be explained upon the proposition of ‘fraud’ as contemplated in Section 48(2) which, he contended, empowers the court to order execution any time beyond 12 years provided by Section 48(1) of the Code.

In support of his case Mr. Saidur Rahman referred to the case of Bishwanath Prasad Mahtha and another v. Lachhmi Narain reported in AIR 1935 Patna, 380 and another case ie, Saifur Rahman and others v. Haider Shah and another reported in 19 DLR (SC) 433.

A plain reading of the revisional application vis-a-vis the law involved suggests that the fate of the rule hinges more on technical question of law than on facts. The question that is mooted here is whether the execution case complained against is barred in view of Section 48 of the Code of Civil Procedure read with Article 182 of the Limitation Act?
 
Section 48 of the Code of Civil Procedure reads as follows:

“48.- (1) Where an application to execute a decree not being a decree granting an injunction has been made no order for the execution of the same decree shall be made upon any fresh application presented after the expiry of twelve years from:
a) the date of the decree sought to be executed, or,
b) where the decree or any Subsequent order directs any payment of money or the delivery of any property to be to be made at a certain date or at recurring period, the date of default in making the payment or delivery in respect of which the application seeks  to execute the decree.
(2) Nothing in this Section shall be deemed-
a) to prevent the Court from ordering the execution of a decree upon an application presented after the expiry of the said term of twelve years, where the judgment-debtor has, by fraud or force, prevented the execution of the decree at some time within twelve years immediately  before  the date of application; or
b) to limit or otherwise affect the operation of article 183 of the First Schedule to the Limitation Act, 1908 (X of 1908).
 
In the case of Bangladesh Jatya Samabaya Bank reported in 36 DLR (AD) 5 and ADC Revenue case reported in 48 DLR (AD) 141, cited by Mr. Mushfiqur Rahman the view taken by the Appellate Division is that 12 years limitation for execution of decree is the maximum limit allowed by law but the first execution must, however, be made within 3 years from decree and no subsequent application, if any, should exceed 3 years from the final order passed in the preceding execution case. In ADC Revenue Case (supra) our Appellate Division held:

“.. both Section 48 CPC and Article 182 of the First Schedule to the Limitation Act provide the period of limitation for execution of a decree. The Civil Procedure Code fixes the longest period whereas the Limitation Act fixes the earliest period to take the first step in execution and the Subsequent steps known as steps-in-aid.  .. an application for execution has, therefore, to satisfy first Article 182 of the Limitation Act being the earliest period prescribed and then also Section 48 CPC which prescribed the maximum period of limitation. If the execution petitions is hit by any of the two it is to fail.”

The above decision of the Appellate Division came in the factual background of condoning the delay in making petitions for execution beyond 3 years time provided by Article 182 of the Limitation Act finally exceeding the outer limit of 12 years provided by Section 48 of the Code by the trial court on ground of continued insanity of the decree-holder and affirmed by the High Court Division in revision holding that Section 48 of the Code did not have application in the case.

It is clear from the above decisions that Section 48(1) of the Code and Article 182 of the Limitation Act are construed by the Appellate Division to mean that there is both earliest and longest time for putting decree into execution and violation of either of the limitations is held to be fatal.

In the instant case it appears that second execution case was filed apparently beyond 3 years’ from the date of decree. The judgment-debtor does not deny the fact either. The second execution case was filed in 2002 which by simple calculation is beyond 12 years from the decree. In needs hardly be mentioned that in view of the decision of the Appellate Division the execution case is barred by limitation. But that is not the only point raised here. The second and the most crucial point raised is distinctly removed from the issue decided by the Appellate Division. Mr. Saidur Rahman, learned Advocate, besides his first line of defense, has tried to make out a case of fraud as contemplated under Sub-Section (2) of Section 48 of the Code.

The case sought to be canvassed by Mr. Saidur Rahman is that the judgment-debtor by his fraudulent conduct prevented the decree-holder from taking out execution against him within time. Now the court is competent to see whether the decree-holder is so prevented and, if it is so found, can order execution even after expiry of 12 years’ time as per Sub-Section (2) of Section 48 of the Code of Civil Procedure.
Sub-Section (2) of Section 48 of the Code, as is quoted above, is an overriding clause that empowers executing court to order execution even beyond 12 years’ time if it is found that the judgment-debtor, by fraud or force, has prevented the decree-holder from executing the decree at some time within the period of 12 years immediately before the date of application. The scope and ambit of ‘fraud’ for the purpose of the section   is now settled more or less.

For the purpose of Section 48(2) of the Code the word ‘fraud’ is liberally construed by the superior courts. In Saifur Rahamn v Haidar Shah, 19 DLR (SC) 433, the then Pakistan Supreme Court held:

“The term ‘fraud’ in this section has to be interpreted in liberal sense as including any improper means resorted to for preventing execution.  It covers not only deceit but also circumvention.”

In Biswanath v Lachhmi, AIR 1935 Pat 380, a Division Bench of Patna High Court held:

“What is quite clearly contemplated, apart from the definition of the term itself, (fraud) is some action on the part of the judgment-debtor which prevents the decree-holder from taking out execution proceedings and thus allowing time to run against him or some action by judgment-debtor which entices the decree-holder to hold his hand”

Similar view has been taken in Gobardhan v Daudayal, AIR 1931 All 301; Raj Sham v Damar, 11 CWN 440 and Adaikappa v Netsan, AIR 1931 Mad 381and Abdul Khadir, P. v Ajiyar Ahmmad and others reported in  35 ILR Mad 670, Power of the court appears to be spelt out in no uncertain terms that if the decree-holder is found to be prevented by the judgment-debtor by fraud or force from taking out execution it is competent in its discretion to override the 12 years time prescribed by law and direct execution of decree anytime beyond the limitation.

Reverting back to the facts it transpires that there are some admitted positions, namely, that a certain amount of loan was taken by the petitioner No.1 (judgment-debtor) from the opposite party bank that he failed to pay off the loan in full till today far less on schedule. The bank filed two execution cases both beyond time prescribed by law. The judgment-debtor has seized of the weakness of the execution case and urges upon for the right vested in him due on the failure of the decree-holder to execute his decree.

A close scrutiny of factual developments around failure of the decree-holder bank in taking out execution in time presents a peculiar scenario of the conduct of the judgment-debtor. A decree-holder, that too a bank has no earthly reason to avoid execution. Curiously for the bank, it filed both the execution cases beyond time. This is self-explanatory and must have some or other back-story that consistently prevented the bank from initiation of execution cases.

Record shows that the decree was passed in 1988 and first execution case was filed in 1992. The so-called compromise petition suggests that the judgment-debtor moved to the Board of Directors of the decree-holder bank for remission of the interests, rescheduling of the loan and other facilities. It appears that the highest authority of the bank was finally prevailed over and remission of interests and re-scheduling etc was made. In taking the advantage the judgment-debtor got his two brothers tagged along and made them to provide fresh security against the loan by mortgaging pieces of land of their own and to execute irrevocable power of attorney in favour of the bank. The entire process from initiation to the end entails consumption of time. Mr. Saidur Rahman, Learned Advocate submitted with emphasis that the tadbir started immedi-ately after the decree was passed ie, far before the expiry of 3 years’ limitation for execution. In view of the volume of works and runaround involved in the job we have no reason to disbelieve the case of the decree-holder that the tadbir so started.  If it is so the decree-holder would naturally prefer pursuing the matter outside court and thereby incur delay in filing the execution case. The delay so incurred, in our opinion, may reasonably be explained upon the proposition that the decree-holder was prevented by fraud in taking out execution at sometime within 3 years from decree. In Abdul Khadir (supra), a Division Bench of the Madras High Court made the following observations:

“Fraud at sometime within 12 years period to the application for execution being sufficient to entitle the decree-holder to ask for execution, it is clear that it is not incumbent on him to show continuous diligence during all the time prior to the application. The language of the section also shows clearly that the decree-holder is not bound to show that, but for the fraud or force complained of, he would have realized the fruit of his decree. All that has to be proved is that the judgment-debtor, by fraud or force, at sometime prevented the execution that is, in my opinion, made the decree-holder’s attempts to execute at the time to which fraud relates, unsuccessful.”

Payment of some money in 2001 by the judgment-debtor indicates that he kept the decree-holder in good humour althrough and by fraudulent means prevented the bank from going for execution of the decree.

The judgment-debtor being guilty of fraud within the meaning of Section 48(2) it must, therefore, be held that he prevented the decree-holder by fraud from taking out execution against him and thereby keeps the decree alive so as to be put into execution. The execution case filed after 12 years period from decree thus being protected under Section 48(2) of the Code of Civil Procedure is maintainable. 

In the result, the rule is discharged.  The impugned order passed by the executing court is maintained and the order of stay granted earlier by this court is hereby vacated.

There shall, however, be no order as to cost.

Communicate a copy of this judgment at once.

End.