Momin Miah Vs. Moinuddin Hossain, 42 DLR (AD) (1990) 17

Case No: Civil Appeal No. 78 of 1989

Judge: Shahabuddin Ahmed ,

Court: Appellate Division ,,

Advocate: Mr. T. H. Khan,Mr. Maksumul Hakim,,

Citation: 42 DLR (AD) (1990) 17

Case Year: 1990

Appellant: Momin Miah

Respondent: Moinuddin Hossain

Subject: Law of Contract,

Delivery Date: 1989-12-4

Supreme Court
Appellate Division
Badrul Haider Chowdhury J
Shahabuddin Ah­med J
M.H. Rahman J
A.T.M. Afzal J
Mustafa Kamal J
Momin Miah & another
Moinuddin Hossain & another
December 4, 1989
The Code of Civil Procedure (V of 1908)
Order XXXIX, Rule I
The judgment debtor entered into a contract to sell the mortgaged land for satisfaction of the decretal amount but full requirement has not been met. The bank was not a party to the agreement. The outstanding amount was tendered against balance claim of the bank but that was refused due to lapse of date fixed. Then a suit for specific performance of contract being filed by the plaintiff against the judgment debtor defendants, in view of such facts the trial courts order staying proceeding of the execution case is perfectly justified and the High Court Division committed error in not confirming the trial courts order………(3 & 4)
Lawyers Involved:
Maksum-ul-Hakim, Senior Advocate, instructed by Miah Abdul Gafur, Advocate-on-Record–For the Appellants.
T. H. Khan, Senior Advocate, instructed by Md. Aftab Hossain, Advocate-on-Record–For Respondent No. 2.
Not represented – Respondent No. 1.
Civil Appeal No. 78 of 1989.
(From the judgment and order dated 25.4.89 passed by the High Court Division, Dhaka, in FMA No. 224 of 1987).
Shahabuddin Ahmed J.
The question involved in this appeal by special leave is whether the trial Court’s order staying the proceedings of an Execution Case (only in respect of the property in T.S. No. 319 of 1986) pending disposal of plaintiffs-appellants’ suit for specific performance of a contract for sale, has been rightly vacated by the High Court Division in revision.
2. Defendant-respondent No.1 was a debtor to the defendant-respondent No.2, Grindlays Bank, for Tk. 7.00 lakh in respect of the property described in Item No.1 of Schedule ‘B’ and for realisation of this amount the bank-respondent filed T.S. No.42 of 1981 in the Court of Subordinate Judge, Dhaka; the suit ended in a compromise decree dated 30 March 1983. In terms of paragraph 5(e) of the compromise decree defendant No.1 was permitted by the Bank, to which the property was under equitable mortgage, to sell the property for Tk.7.00 lakh to clear the debts, and in case the sale proceeds fell short of this amount he was to make up the shortfall from his own sources Accordingly, defendant No.1 entered into an agreement dated 6 December 1983 with the appellants for sale of the property for Tk.6.00 lakh only. The Authorised Officer of Bank signed the Agreement as one of the witness. In terms of the Agreement, the appellants (purchasers) paid Tk.6.00 lakh direct to the bank and they were also put into possession of the land. But when defendant No.1, in terms of the Compromise decree, failed to deposit the shortfall of Tk.1.00 lakh to the bank within the stipulated time- 31.12.1983- the appellants-purchasers deposited the shortfall- Tk.1.00 lakh- to the bank by Pay Order dated 25.7.85. But the bank returned the Pay Order taking the ground that it was not made by the stipulated time and filed the Execution Case (No.42 of 1984) for sale of the property in terms of the Compromise decree. The appellants then filed the suit for specific performance of the contract for sale both against defendant No.1 and defendant No.2 the bank, and prayed for a decree subject to payment of Tk.1.00 lakh by them as a Nominee of defendant No.1. In that suit they prayed for and obtained an order of temporary injunction by which the Bank was restrained from proceeding with the Execution Case till disposal of the suit. On appeal, the High Court Division, by the impugned order, set aside the trial Court’s order observing that the Bank was not a party to the Agreement for sale between the appellants and defendant No.1 and that the property having been in mortgage with the Bank the latter is not under any obligation to stay the execution proceeding.
3. We have heard Mr. Maksum-ul-Hakim, learned Counsel for the Bank, respondent No.2. Facts as given above are not disputed. In the Agreement for sale of the suit land, the bank was not directly a party, but it is the bank by whose ad­vice and at whose instance the Agreement was made in order to clear its dues of Tk 7.00 lakh. It was so arranged that in case the sale proceeds fell short of the dues it would be paid by defendant No. 1. The appellants deposited the entire amount of consideration of Tk 6.00 lakh with the bank which the bank ac­cepted; but when the shortfall of Tk 1.00 lakh was not paid by defendant No.1, the appellants on his be­half paid the deficit of Tk 1.00 lakh, though beyond the stipulated period. Mr. Hakim has submitted that the bank's interest lay only in receiving the shortfall of Tk 1.00 lakh, and when it was offered beyond the lime stipulated, the bank might be entitled to inter­est thereupon from the due date of payment, but the bank cannot get away simply saying that it was not directly a party to the Agreement.
4. It appears that two material points in this case-payment of the balance of Tk 1.00 lakh on 25.7.85 and the appellants' possession of the land under Agreement for sale—were entirely omitted from consideration by the High Court Division. In this appeal we are concerned only with the question whether pending disposal of the suit for specific per­formance of the contract the Execution Proceeding should be stayed. As such we need not express any opinion about the merit of the suit. In view of the facts and circumstances as discussed above, the trial Court's order staying the proceeding of the Execu­tion case (only in respect of the property in dispute in T.S. No. 319 of 1986) was perfectly justified and the High Court Division does not appear to have correctly exercised its discretion in interfering with the trial Court's order to that extent.
5. In the result, the appeal is allowed. The im­pugned order of the High Court Division is set aside and that of the trial Court restored only in respect of the property in dispute, that is, item No.1 of Sched­ule 'B' of the Compromise petition (as in T.S. No.319 of 1986). No order as to costs.