M/S. G. K. Brothers and another Vs. M/S. Imperial Chemical Ltd., 2 LNJ (2013) 371

Case No: First Appeal No. 54 of 1997

Judge: Shahidul Islam,

Court: High Court Division,,

Advocate: Mr. Md. Omar Farouq,Fazlul Karim,,

Citation: 2 LNJ (2013) 371

Case Year: 2013

Appellant: M/S. G. K. Brothers and another

Respondent: M/S. Imperial Chemical Ltd.

Subject: Limitation,

Delivery Date: 2011-03-20

HIGH COURT DIVISION
(CIVIL)
 
Shahidul Islam, J.
And
Md. Rais Uddin, J.

Judgment
20.03.2011
 
M/S. G. K. Brothers and another
... Principal-Defendant-Appellants
-Versus-
M/S. Imperial Chemical Industries Bangladesh Limited
…. Plaintiff-Respondent
 

Limitation Act (IX of 1908)
Article 182
The proceeding of execution case has not become infructuous as there is no bearing of House Rent Control Case No. 224 of 1983 on the proceeding of Other Execution Case No. 20 of 1985 which was filed within 9 months of disposal of the suit finally. The period of limitation for starting execution case is 3 years under Article 182 of the Limitation Act and hence the execution case was filed within time for which the question of frustration of the force of the decree passed in Title Suit No. 4 of 1974 does not arise. . . .(13)
 
Words and Phrases
Soletium
In the instant case, the soletium of Taka One Lac was deposited within 40 days. Since there was no default clause the deposit of soletium beyond 30 days was a lawful compliance of the direction given by the Appellate Division of the Supreme Court of Bangladesh. Accordingly, the Execution Case No. 20 of 1985 is very much executable. . . . (14)
 
Code of Civil Procedure (V of 1908)
Sections 35A and 36
In the meantime 16 years have passed under the coverage of the instant vexatious litigation. In view of the above and in applying our power conferred under section 35A of the Code of Civil Procedure, we award a cost at taka 1,00,000/- (one lac) against the plaintiff respondent. They are directed to deposit the said amount in the credit of the appellants within 60 days from date, failing which the appellants shall be able to realize the said cost by executing the order of this Court under section 36 of the Code of Civil Procedure. . . .(17)

Mr. Fazlul Karim with
Mr. Md. Omar Faruk
.... For the Appellants

No one appears
.... For the Respondent

First Appeal No. 54 of 1997
 
JUDGMENT
Shahidul Islam, J:
 
This First Appeal is directed against the judgment and decree dated 02.11.1996 passed by the learned Sub-ordinate Judge, 3rd Court, Chittagong in Other Suit No. 100 of 1995 decreeing the suit.
 
The respondent as plaintiff instituted the suit seeking for the following relieves; অতএব বাদী নিম্নমতে প্রার্থনা করেনঃ-
(ক) মূল বাদী কর্তৃক চট্রগ্রাম ১ম সাবজজ আদালতে অপর জারী ২০/৮৫ ইং মামলা নিষ্পওির পূর্বে চট্রগ্রাম ১ম সহকারী জজ আদালতের ঘর ভাড়া ২২৪/৮৩ ইং মামলা হইতে বাদীর নামে জমাকৃত ৩,৬০,০০০/- টাকা উত্তোলন করিয়াছেন কারনে কবলা পাওয়ার অধিকার ধিরাব করিয়াছেন। এবং বর্ণিত অপর জারী ২০/৮৫ ইং মামলা বাতিল infructuous, জারী অযোগ্য এবং তৎদ্বারা মূল বিবাদী আদালত উলক্ষে কবলা দখল পাইতে অধিকারী নহে মর্মে ঘোষনা মূলক ডিক্রী প্রচার হয় ।
(খ) মূল বিবাদী কর্তৃক অপর জারী ২০/৮৫ ইংরেজী মামলা নিষ্পত্তি কারনে ইচ্ছাকৃত ভাবে বিলমব করিয়াছেন কারনে চুক্তিমূলে কবলা পাওয়ার ডিক্রী frustrated হইয়াছে মর্মে উচ্চারনর ডিক্রী হয়।
(গ) মূল বিবাদী কর্তৃক চুক্তি ও ডিক্রীর ভিত্তিতে কবলা নিতে দীর্ঘ সুএিতার কারনে বাদীর পক্ষে ডিক্রীর প্রয়োজন frustrated হইয়াছে কারনে বাদী মূল বিবাদীর বরাবরে কবলা সম্পাদন ও রেজিষ্টি দিতে বাধ্য নয় মর্মে উচ্চারণ হয় ।
(ঘ) মূল বিবাদী মহামান্য সুপ্রীম কোর্টে লীভ পিটিশন ২৭৪/৮৪ ইংরেজী মামলার আদেশ মতে সময় সীমার মধ্যে অতিরিক্ত ১,০০,০০০/- টাকা বাদী আদায় করিতে ব্যর্থ হওয়ায় defaulter হইয়াছেন এবং উক্ত কারনে মূল বিবাদী জারী মামলা পরিচালনা কততে পারে না মর্মে উচ্চারনের ডিক্রী হয়।
(ঙ) মামলার খরচ বিবাদীর বিরুদ্ধে ডিক্রী হয়।
(চ) অন্যান্য প্রতিকারাদ বাদীকে প্রদানের বিহীত আজ্ঞা হয়।
 
The plaint’s case in nut shell was that the defendant No. 1 and 2`s transferor entered into a contract on 17.8.1970 with the plaintiff of the instant suit for purchase of the suit land at Taka 3,30,000/-, out of which Taka 33000/- was paid as earnest money. The defendant No. 1 and 2 procured Income Tax Clearance Certificate on 24.12.1970 and the life of the said Income Tax Clearance Certificate was valid till 31.3.1971. ultimately the defendant No. 1 and 2 as plaintiffs instituted Other Suit No. 41 of 1974 in the Court of Sub-ordinate Judge, 1st court, Chittagong for Specific Performance of Contract impleading the present plaintiff as defendant and that suit was decreed on contest by the judgment and decree dated 30.11.1977. The present plaintiff respondent being aggrieved by the said judgment and decree preferred First Appeal No. 9 of 1978 and the appeal was dismissed by the judgment and decree dated 18.03.1984 (exhibit-‘kha’). Thereafter the present plaintiff preferred Civil Petition for Leave to Appeal No. 274 of 1984 before the Appellate Division and that was dismissed by the judgment and order dated 28.02.1985 vide exhibit ‘Gha’. The Appellate Division directed the present appellant (defendant No. 1 and 2 of the instant suit) to make payment of a solatium of Taka 1, 00, 000/- within 30 days from the date of the order. As such the plaintiff of the instant suit was entitled to Taka 3, 97,000/-. It was the further case of the plaintiff that the defendant No. 4 entered into the suit land as a vharatia under the present plaintiff on the strength of an agreement dated 28.02.1997. At one stage the defendant No. 4 started depositing rent with the Rent Controller under section 19 of the premises Rent Controller Ordinance vide HRC case No. 224 of 1983 in favour of the plaintiff. The plaintiff withdrew Taka 1, 80,000/- from the Rent Controller. For want of Income Tax Clearance Certificate, the defendant No. 1 and 2 (present appellants) failed to get the kabala deed executed and registered through Court on the strength of the judgment and order passed by the Appellate Division. It was their further case that the present appellants started Execution Case No. 20 of 1985 for Execution of the judgment and decree dated 30.11.1977 passed in other class Suit No. 41 of 1974 (Exhibit-‘ka’) and the proceeding of that case was stayed. It was the further case of the plaintiff respondent that before getting a kobala deed executed and registered, through Court, the defendant No. 1 and 2 was added as parties in the HRC Case No. 224 of 1983 and beyond the notice of the plaintiff they withdrew Taka 36,0000/- from the said case, although the rent was being deposited by the defendant No. 4 in the name of the plaintiff. The defendant No. 1 and 2 (appellants) were not entitled to withdraw that amount before getting the kobala deed executed and registered. It was the further case of the plaintiff that the defendant No. 1 and 2 failed to deposit soletium within the time limit as granted by the Appellate Division and as such they were not entitled to get any deed executed and registered through Court and the decree became infructious. The plaintiff submitted an application on 29.4.1986 for getting back the rent from the defendant No. 1 and 2 and that was objected by the defendants. It was the plaintiffs case that for the cause of failure of depositing taka 3, 97,000/- as per order of the Supreme Court and for the cause of withdrawal of Taka 36,0000/- from the HRC case No. 224 of 1983, the decree passed in the Other Class Suit No. 41 of 1974 became infructious. As a result the plaintiff instituted the instant suit being Other Suit No. 100 of 1995 for the reliefs as mentioned above.
 
The defendant No. 1 and 2 (present appellants) contested the suit by filing written statement contending inter alia that the suit was not maintainable in its present form and barred by waiver estoppel and acquiesce. It was their case that the predecessor of the plaintiff entered into a contract for sale of the suit land on 18.7.1970 at a consideration of Taka 3,33,000/- with the defendant No. 1 and 2`s vendor. The defendant No.1 and 2 subseque-ntly purchased the agreement as well as all assets of the 2nd party of the agreement and instituted the Other Suit No. 41 of 1974 for Specific Performance of Contract against the plaintiff. It was their case that the Income Tax clearance certificate was procured on 24.12.1970 which became ineffective as it was not possible for getting the kabala deed executed and registered within the life time of income tax clearance certificate due to liberation war. Thereafter the defendants requested the present plaintiff to execute and register a Kobala but ultimately that was not done and as such the Other Suit No. 41 of 1994 was instituted seeking for Specific Performance of Contract. That suit was decreed on 30.11.1977 on contest against which the present plaintiff respondent preferred First Appeal No. 9 of 1978. That appeal was dismissed on 13.12.1983. The present plaintiff respondent preferred Civil Petition for Leave to Appeal No. 274 of 1984 and that was dismissed on 11.3.1985. Thereafter the present appellants started Execution Case No. 20 of 1985 for executing the decree. The defendant No. 1 and 2 depos-ited the balance consideration on 12.3.1984 vide Exhibit-‘Ga’ within 90 days of the judgment and decree and also deposited Taka 1, 00, 000/- towards soletium on 9.4.1984 vide Bank Draft No. 1719594 dated 9.4.1985 with the Pubali Bank, Mahendigonj Branch, Chittagong. It was the further case of the defendant appellant that the plaintiff respondent has admitted the fact of receiving payment on 09.04.1985 by filing a receipt. It was the further case of the defendant appellants that after passing the judgment and decree by the Supreme Court (Appellate Division) the plaintiff was ceased to retain any interest in the suit property and as such the defendant No. 1 and 2 were added as party in HRC case No. 224 of 1983. It was their further case that the plaintiff has filed the instant suit only to deprive of the defendants from enjoying the fruit of the decree passed in other suit no 41 of 70 and from executing the same vide Execution Case No. 20 of 1985. With these averments the appellants prayed for dismissal of the suit.
 
The learned Sub-ordinate Judge framed the following issue:-
  1. Is the suit maintainable in its present form?
  2. Is the suit barred under section 42 of the Specific Relief Act?
  3. Whether the defendant No. 1 and 2 have legal title and possession in the property of Other Suit No. 41 of 1974?
  4. Whether the defendant No. 1 and 2 had authority to withdrow money from HRC Case No. 224 of 1983?
  5. Whether the plaintiff is entitled to get a decree as prayed for?
Both the parties examined witness and their documents were admitted into evidence.
 
The learned Sub-ordinate Judge by the impugned judgment and decree dated 02.11.1996 decreed the suit on contest holding that the defendant No. 1 and 2 (appellants) are not entitled to get any kabala deed executed and registered through Court vide Execution Case No. 20 of 1985.
 
Being aggrieved by the said judgment and decree the defendant No. 1 and 2 have preferred this appeal.
 
Mr. Fazlul Karim with Mr. Md. Omar Faruk, the learned Advocates entered appearance for the appellant. No one appeared for the respondent.
 
Mr.Omar Foruq submitted that the suit itself is not maintainable in its present form. He further submitted that by filing the instant suit, the plaintiff has virtually sought for a declaration for making the force of the Appellate Division’s judgment inoperative. He further submitted that the suit is barred under Article 111 of the constitution of the peoples Republic of Bangladesh. He further submitted that the earlier suit was for Specific Performance of Contract being No. 41 of 1974, was decreed on contest and that decree was made up held up to the Appellate Division and there after the Execution Case No. 20 of 1985 was started within limitation, which is pending for disposel. He submitted that so long the judgment and decree of the Appellate Division stands, the suit itself was not maintainable as being barred by resjudicata in as much as the material issues of Other Suit No. 41 of 1974 were directly and substantially in issues of the instant suit but the learned subordinate judge erroneously framed other issue just to take away the sight of others from the issues framed in the earlier suit. With these averments he prayed for setting aside of the impugned judgment and decree.
 
Upon considering the case of both the parties as made out in their respective pleadings we need to frame the following issues for determining the matter in controversy between the parties:-
  1. Whether the defendant decree holders have waieved their right to proceed on with the other execution case No. 20 of 1985 pending before the sub-ordinate judge 1st court Chittagong for the cause of withdrawal of taka 3,60,000.00 from the account of H.R.C case No. 224 of 1983 of the House Rent controller and Assistant Judge,. 1st court Chittagong?
  2. Whether the proceeding of other execution case No. 20 of 1985 pending before the sub-ordinate Judge 1st Court Chittagong has become infructuos and in executable?
  3. Whether there caused any delay in filing the execution case No. 20 of 1985 resulting the force of the judgment and decree passed in other suit No. 41 of 1974 frustrated or in infructuos?
  4. Whether the decree holders have lost their right to execute the decree passed in other suit No. 41 of 1974 of the subordinate judge 1st court, Chittagong?
  5. Whether there caused any delay in depositing soletium of taka 100000.00 as per the direction of the Appellate Division of the supreme court of Bangladesh resulting the decree passed in other suit No. 41 of 1974 infructuos and inexecutable.
  6. What amount is payable by the decree holder towards income tax for getting the kobala deed executed and registered?
  7. Whether the impugned Judgment and decree are sustainable in law?
Let us take up issue No. i, ii, iii and iv together for consideration and decision:-
The plaintiff respondent has examined only one witness to prove his claim. We have gone through the evidence of PW1. It is to be noted here that the instant suit being No. 100 of 1995 is the second round legal battle between the parties to the suit upon the same subject matter. The 1st round battle was started in 1974. The background of that battle was that the present plaintiff respondent entered into a contract for sale of the suit land in favour of M/S Imperial commercial Industries Ltd and accordingly an agreement for sale was executed and registered on 17.08.1970. M/S Imperial commercial Industries Ltd. Sold out its entire assets to the defendant No.1 and 2 of the instant suit (appellants) and they stepped into the shoes of M/S Imperial commercial Industries. From the evidence of PW1 we find that those facts have been admitted by the PW1. The PW1 has also admitted in his examination in chief that the defendant appellants instituted other suit No. 41 of 1974 for specific performance of contract on the strength of the registered agreement dated 17.8.1970 (exhibit 3) and that suit was decreed on 30.1.77 on contest. From exhibit 3 it shows that total consideration was fixed at taka 3,30,000.00. The judgment and decree dated 30.1.77 has been marked as exhibit 4 series. The PW1 further admitted in his examination in chief that the present plaintiff respondent preferred F.A. No. 9 of 1978 before this court as against the judgment and decree dated 30.1.77 and that appeal was dismissed on contest by the judgment and decree dated 18.3.1984. Thereafter the plaintiff respondent preferred civil petition for leave to Appeal No. 274 of 1984 and that was dismissed by the judgment and order dated 28.2.1985. The Appellate Division directed the decree holder to pay Soletium of taka 100000.00 to the judgment debtor within 30 days from 28.2.1985. From the record it shows that the balance consideration of taka 2,97000.00 was paid on 12.3.1984 by treasury challan vide exhibit ‘Ga’ which was within 90 days of passing of the High Court`s Judgment. The soletium of taka 100000.00 (one lac) was paid by Bank Draft No. 1716594/85 dated 9.4.1985 vide exhibit “umo” which was within 40 days of the Appellate Division`s judgment dated 28.2.1985.
 
It further appears from the record that there is a two storied building upon the suit land. The defendant No. 4 was inducted into the said building by the plaintiff respondent (judgment debtor) as tenant who started depositing rent with the House Rent controller vide H.R.C case No. 224 of 1983. It further appears that after disposal of the leave petition No. 274 of 1984 and after paying soletium of taka 100000.00 (one lac) the present appellants (decree holder of earlier suit) submitted on application on 16.4.1986 in the H.R.C case No. 224 of 1883 for adding them as parties in the said case and transposing them in place of the plaintiff respondent and that application was allowed. Admittedly the House Rent Controller allowed the appellants (decree holder) to withdraw taka 3,60000/= (Three lacs and sixty thousand) only from the said H.R.C case. The PW1 admitted in his evidence that, to execute the decree, passed in other suit No. 41 of 1974, the decree holders have started execution case No.20 of 1985 before the sub-ordinate judge, 1st court Chittagong. That case is still pending as all further proceeding of the case was stayed by order No 2 dated 8.7.1995 by the sub-ordinate judge, 1st court Chittagong on the instant suit No. 100 of 1995. That execution case has been submitted on 19.11.1985, within 9 months of the Appellate Division judgment and order dated 28.2.1985. The withdrawal of taka 3, 60000.00 from the H.R.C case No. 224 of 1983 has got no bearing upon the proceeding of execution case No. 20 of 1985. The concern House Rent controller has allowed the appellants (decree holder) to withdraw money being satisfied that the entire consideration money of the suit land and the soletium was paid in full. From the record it appears that by order No. 37 dated 16.8.86 the defendant appellants were transposed in place of the plaintiff respondent in H.R.C case No. 224 of 1983. That prayer for transposition was not opposed by the plaintiff respondent. From the record it further appears that the House Rent controller allowed the defendant appellants to withdraw rent vide order dated 5.8.1986, 5.1.1987, 6.12.1987, 3.12.1988 and 21.5.1991. By those order the rent of two storied building, amounting to taka 3,60,000/=three lac sixty thousand) only was withdrawn from the account of H.R.C case No. 224 of 1983. It is true that the execution case is still pending and the kobala deed has not been registered as yet but the agreement dated 17.8.1970 was a registered agreement for sale. The contractual amount has been paid by the decree holder. From exhibit ‘Ta’ it shows that the judgment debtor submitted an application on 14.5.1986 before the executing court expressing willingness to execute and register kobala deed in favour of the defendant appellant. It further shows from the record of execution case No. 20 of 1985 that the said court directed the decree holder to put in stamp papers for writing a kobala deed and stamp papers were duly supplied on 18.1.1992. The kobala was written and executed by the executing court on 22.2.1992 which is evident from exhibit ‘Tha’. The said court presented the kobala before the concern sub-Register for registration. The sub-register assessed tax, towards transfer, amounting to taka 25, 15,625.00 and for want of paying that amount the kobala deed has not been registered as yet. In the meantime the further proceeding of the execution case was stayed by order dated 18.7.1995 by the sub-ordinate judge, Chittagong in other suit No. 100 of 1995. From the facts and circumstances as discussed above we are of the view that the plaintiff respondent has been ceased to retain any right title and interest in the suit land. As soon as the consideration money and the soletium have been paid, the judgment debtor (plaintiff respondent ) has been ceased to claim any title in the suit land. In a suit for specific performance of contract the plaintiff is required to prove existence of a valid contract, due execution of agreement by the sellor and payment of earnest money or entire consideration money. In the earlier suit those requirements have been proved and the judgment and decree passed by the trial court allowing specific performance of contract has been affirmed by the appellant Division. Now the executing court is bound to execute the decree as it stands. In the meantime the executing court has executed the kobala deed. In view of the above facts and circumstances the question of waiver of in executing the decree does not stand for the cause of withdrawal of taka 3,60000/= from the account of H.R.C case No. 224 of 1983. The proceeding of execution case No. 20 of 1985 has not become infructuous in as much as there is no bearing of H.R.C case No. 224 of 1983 upon the proceeding of other execution case No. 20 of 1985 of the court of sub-ordinate judge, 1st court, Chittagong. The H.R.C case has been filed by tenant under section 19 of the Premises Rent control ordinance for depositing monthly rent-but the other execution case No. 20 of 1983 has been filed for execution of the decree passed in other suit No. 41 of 1974 of the sub-ordinate judge, 1st court, Chittagong. The said execution case was filed only within 9 months of disposal of the suit finally. Under Article 182 of the limitation Act the period of limitation for starting execution case is 3 years and as such there caused no delay in submitting the execution case. And as such, the question of frustration of the force of the decree passed in title suit No. 4 of 1974 does not arise. Accordingly the issue No. i, ii, iii, and iv are decided negatively against the plaintiff respondent. The execution case being a pending proceeding and having been started within the period of limitation, we have no hesitation but to hold that the decree holders have every right to execute the decree and the said decree is executable as it stands.
 
Let us taka up issue No. v as to whether the execution case No. 20 of 1985 has become inexecutable on account of failure of depositing soletium of taka 100000.00 within 30 days, as per direction of the Appellate Division? We have gone through the judgment and order dated 28.2.1985 passed by the Appellate Division in Civil Petition for Leave to Appeal No. 274 of 1994. By the said judgment the appellant decree holders (defendant No. 1 and 2 of other suit No. 41 of 1974) were directed to pay a soletium of taka 100000.00 to the judgment debtor within 30 days. There was no default clause in the said judgment. In the case of wali reported in 19 DLR (Sc)- 143 it has been held that the direction for doing anything without a default clause is directory. In the instant case the soletium of taka 100000.00 (one lac) was deposited vide exhibit “uma” within 40 days. Since there was no default clause the deposit of soletium beyond 30 days was a lawful compliance of the direction given by the Appellate Division of the Supreme Court of Bangladesh. Accordingly the execution case No. 20 of 1985 is very much executable. Accor-dingly we decide the issue No. v negatively against the plaintiff respondent.
 
Let us taka up issue No. vi for decision:-
        The agreement for sale of the suit land was executed on 17.8.1970 for transfer of the suit land at a consideration of Taka 333,000/-. To compel the defendant of other class suit No. 41 of 1974 for executing and registering a kobala deed, the present appellants, as plaintiffs instituted the said suit for specific performance of contract, that suit was instituted in 1974. The Suit was decreed on 30.11.1977. The present respondent fought upto the Appellate Division by filing C. P. L. A. No. 274 of 1984 and got defeated on 13.3.1985. The execution proceeding, was stayed by order dated 18.4.1995 by the sub-ordinate Judge, 3rd Court Chittagong in Other Suit No. 100 of 1995. It is the settled law that the plaintiffs position shall be taken into account, which was, on the date of institution of the suit and the subsequent event shall not change or affect the position of the plaintiff. That principle has been settled upon the question of payment of advalorem Court fees. In that case the plaintiff was in possession in the suit land on the date of filing of the suit but thereafter was dispossessed. This court decided that the plaintiff need not pay advalorem Court fees as he was in possession on the date of institution of the suit. That decision has been reported in 28 DLR(HD) page 392. The said case law is squirely applicable in the instant case on the question of paying income tax towards registration of deed in Execution Case No. 20 of 1985. It is true that, the valuation of the property as was in 1970 has been increased, hundred times greater, than that, of 1970 but appeal is the continuation of the original suit. After deciding a Suit for Specific Performance of Contract, the judgment debtor can not claim more money towards consideration. Litigation may continue for 100 years but taking advantage of prolongation of litigation as well as increasing of valuation of the suit land, the income tax authority can not claim more money towards income tax clearance certificate beyond the tax payable upon the contractual amount. Had the kabala deed been executed normally in 1970 the income tax authority would have realized tax upon taka 3, 33000/-. Since appeal is the continuation of suit, the income tax ought to the have been assessed upon taka 3, 33000/- which was the actual price of the suit land. The soletium of 1, 00, 000/- is not the price of the land. Soletium means a sum to be paid to a person as compensation or continuation for injured feelings. So, far the question of collecting income tax clearance certificate is concerned for registration of kabala in other execution Case No. 20 of 1985, the income tax is required to be paid upon taka 3,33000.00. The income tax authority is estopped from collecting more money beyond the tax payable upon taka 3,33000/-
 
Now let us take up issue No. vii for decision as to whether the impugned judgment and decree are sustainable in law? Upon perusal of the plaint of the other suit No. 100 of 1995 it appears to us that, the matter in issue of the earlier suit No. 41of 1974 and the matter in issues in the instant suit are common but in different form. This is the 2nd round legal fight upon the self same subject matter and upon common issues which have already been decided finally. The learned joint District judge, framed some irrelevant issues. The subject matter of the suit has already been decided by the Appellate Division. The instant suit is barred by resjudicata out and out and the plaint is liable to be rejected. Accordingly we find merit in the appeal. The impugned judgment and decree are not sustainable in law. The appeal is liable to be allowed with a cost of taka 1,00, 000/- lac in view of the fact that after deciding the matter up to the Appellant Division of the supreme court of Bangladesh, the plaintiff has instituted the instant suit only with an unholy intention to deprive of the decree holder from enjoying the fruit of the decree and for enjoying the rent deposited with the Rent controller for the suit land. The plaint of Title Suit No. 100 of 1995 is hereby rejected under section 151 of the code of Civil Procedure. It is to be recorded here that there was no latches on the part of the decree holder for taking steps towards executing the decree. The impediment took place for the cause of assessing excessive income tax for registration of the document. The said assessment was made upon the existing market value of the property as was in 1985 and that was not legal as per law.
 
We further need to record a note that the instant suit is a vexatiows suit, instituted to deprive of the defendants decree holder from enjoyment of the fruit of the decree. In the meantime 16 years have passed under the coverage of the instant vexatious litigation. In view of the above and in applying our power conferred under section 35 A of the code of civil procedure, we award a cost at taka 1, 00, 000/- (one lac) against the plaintiff respondent. They are directed to deposit the said amount in the credit of the appellants within 60 days from date, failing which the appellants shall be able to realise the said cost by executing the order of this Court under section 36 of the Code of Civil Procedure.
 
From the facts and circumstances and the discussions as made above we find merit in the appeal.
 
In the result the appeal is allowed with costs Taka 1, 00, 000/- (one lac). The impugned judgment and decree dated 02.11.1996 passed by the learned Sub-ordinate Judge, Court, 3rd Court, Chittagong in Other Suit No. 100 of 1995 are set aside. The order of stay of execution of other execution case No. 20 of 1985 stands vacated. The executing court is directed to execute the decree as it stands within one month including handing over possession in the suit land in favour of appellants through court.
 
The office is directed to send down the lower Court’s record at once.
 
Ed.