Sahera Khatun and others Vs. Abdul Gaffar @ Abdul Gaffar and others, 55 DLR (AD) (2003) 79

Case No: Civil Appeal No. 55 of 2000

Judge: Mohammad Fazlul Karim ,

Court: Appellate Division ,,

Advocate: Mr. Mahbubey Alam,,

Citation: 55 DLR (AD) (2003) 79

Case Year: 2003

Appellant: Sahera Khatun and others

Respondent: Abdul Gaffar @ Abdul Gaffar and others

Subject: Execution Decree,Procedural Law,

Delivery Date: 2001-7-8

 
Supreme Court  
Appellate Division  
(Civil) 
 
Present:
Mainur Reza Chowdhury J  
Md. Gholam Rabbani J  
Md. Ruhul Amin J  
Md. Fazlul Karim J  
 
Sahera Khatun and others
…………………..Appellants  
Vs.  
Abdul Gaffar @ Abdul Gaffar and others
………………......Respondents  
 
Judgment  
July 8, 2001
 
The Code of Civil Procedure, 1908 (V of 1908)
Section 51(a) & Order XXI rule 11(2) (j) (i)  
To facilitate execution of a decree for delivery of possession of an immovable property the plaintiff must specify the property. The executing Court can neither go beyond nor behind the decree to supply the specification which is not there in the decree itself….(8)   
 
Case Referred to-  
Bigo Rangam Kamon and others vs. Khan Bahadur Khalilur Rahman, PLD 1968 SC 342; Vasuder vs Rajabdar AIR 1970 SC 1475.
 
Lawyers Involved:
Md. Roushan Ali, Senior Advocate, instructed by Ataul Huq, Advocate‑on‑Record‑For the Appellants.
Mahbubey Alam, Senior Advocate, instructed by Chowdhury M Jahangir Advocate‑on‑Record‑For the Respondents.
 
Civil Appeal No. 55 of 2000
(From the judgment and order dated 4th February 1999 passed by the High Court Division in Civil Revision No. 4156 of 1997).
 
JUDGMENT
 
Md. Fazlul Karim J.
 
This appeal by leave granted on 9‑3‑2000 is for consideration as to whether the High Court Division has fallen into an error of law in holding that the appellants who are co‑sharers in the suit property were not entitled to possession of the decretal land, although they were found dispossessed from the entire property during the pendency of the suit.
 
2. In the year 1976 Taizuddin Bhuiyan and his wife Faizunnessa, predecessors of the appellants, instituted a suit for declaration of title in respect of entire suit land measuring 2.28 acres of land in Plot Nos. 63, 64, 71, 65, 72, 71/1066 and for further declaration that the suit property is not an enemy property.
 
3. Defendant Nos. 1‑4 contested the suit filing jointly written statement and claimed leasehold right under defendant No. 5, the Assistant Custodian and Additional Deputy Commissioner (Revenue).
 
4. Defendant No. 5 contested the suit stating that the land in suit is an enemy property and the plaintiff is not entitled to get the decree.
 
5. The suit was ultimately decreed declaring the plaintiffs 16 annas interest in the suit land and that the same was never an enemy property and further directed to deliver vacant possession of the suit land to the plaintiff within 30 days of the decree by an order of permanent mandatory injunction and an appeal therefrom was, however, allowed in part setting aside the impugned judgment and decree of the trial Court but declaring the right, title and interest of the plaintiff to the extent of 2 annas share only of the suit land. Revision therefrom was taken in Civil Revision No. 79 of 1986 but the same was disposed of with observation on 22‑9‑1986 holding that plaintiff is entitled to get possession to the extent of 2 annas share in the suit land and is lawfully entitled to restoration of possession to the extent of 2 (two) annas share as decreed by the lower appellate Court. The appellant instituted title execution case No. 5 of 1988 for execution of the decree claiming recovery of possession of 0.28 acres of land out of 0.60 acre of Plot No. 65 but the defendant filed an application on 24‑8‑1997 to strike off the aforesaid execution case on the ground that since 2 annas share of the plaintiff was not specified in the decree or in the revisional application before the High Court Division the plaintiff could not proceed with the execution case but the learned Senior Assistant Judge by order dated 12‑10‑1997 rejected the application holding that there is no reason to reject the execution case filed by the plaintiff. The judgment‑debtor thereafter moved the High Court Division in Civil Revision No. 4156 of 1997 on the ground that the plaintiffs have got a decree only in respect of 2 annas share in the suit land i.e., 0.28 acres out of 2.28 acres of land in six plots and for restoration of possession thereof and in the absence of specification in the decree as to how and from which partition of the suit land said 0.28 acres of land would be carved out and given possession to the plaintiff, the decree is not executable without resorting to a partition suit. Plaintiff having asked for restoration of possession to the building and the adjacent land measuring 0.28 acres out of 0.60 acres on plot No. 65 by way of execution of the decree is going beyond the terms of the decree and, as suck the execution case is liable to be struck off as not maintainable. The Rule in Civil Revision No. 4156 of 1997 was made absolute on 4‑2‑1999 on the finding, inter alia, that in the instant case, the decree in favour of the plaintiff was passed by the' lower appellate Court and not by the trial Court. Subsequently, this court in its revisional jurisdiction, in addition to its affirmance of the decree regarding declaration of title by the lower appellate Court, also gave a direction for restoration of possession of the said 0.28 acres land by way of mandatory injunction. But that too without any specification/guidelines as to how this 0.28 acres of land from the said six different plots should be carved out and given possession to the plaintiff. This is however besides the point, whether this Court in revision could competently pass a decree for mandatory injunction in the absence of any prayer made in this regard by the plaintiff. The executing Court is not competent to question the legality or otherwise of the decree and is only required to execute the decree as it is, provided it is executable.
 
6. The appellant accordingly, moved this Division with Civil Petition No. 548 of 1988 wherein leave was granted as aforesaid.
 
7. Mr Roushan Ali, the learned Counsel appearing for the appellants, submits that since the Plaintiff‑ appellants were illegally dispossessed/ evicted by the Police during the pendency of the suit at the instance of defendant No. 3 the Additional Deputy Commissioner Revenue Narayangonj, from 0.28 acres of land out of Plot No. 65 at the southern portion with a pucca building thereon, the decree sought to be executed in the execution case should be taken to be the decree passed in the suit and is accordingly, executable as it does not suffer from any lack of specification. The learned Counsel further submitted that the High Court Division in Civil Revision directed the executing Court to execute the decree and, as such the executing court rightly refused to strike off the execution case inasmuch as the defendant No. 4 had no locus standi  
 
8. Admittedly, the suit was decreed by the Court of appeal below declaring of the plaintiff­ appellant's 2 annas share in the suit land consisting of 6 plots, namely, 63, 64, 71, 65, 72 , 71/ 1066 totalling 2.28 acres of land. Although, the appellant has sought to be restored in possession in respect of 0.28 acres of the suit land in the building in Plot No. 65 situated to the southern portion thereof allegedly evicted by defendant No. 5 but the decree obtained by the plaintiff being a decree for declaration the same is not executable. In the case of Bigo Rangam Kamon and others vs. Khan Bahadur Khalilur Rahman, PLD 1968 SC 342 it has been held, inter alia, "that a decree held to be decretal in nature is not liable to be executed through the intervention of the Court." High Court Division as well observed that the lower appellate Court passed the decree declaring title of the plaintiffs to 0.28 acres of land out of six different plots but gave a direction by way of mandatory injunction for restoration of possession to the said 0.28 acres of land without any specification. Such decree, in our opinion, is inexecutable for lack of specification. Section 5l (a) read with Order XXI, rule 11 (2)(J)(i) of the Code of Civil Procedure requires that a decree for delivery of Possession of an immovable property must specify the immovable Property to facilitate execution of the case. The executing Court can neither go beyond nor behind the decree to supply the specification which is not there in the decree itself. Because that would amount to usurping the jurisdiction of the trial Court. The present decree, in the absence of necessary specifications, is not  
 
9. It is a cardinal principle of law that a Court executing a decree cannot go behind tile decree between the parties or their representatives, if must take the decree according to its tenor and cannot entertain any objection that the decree was incorrect in law or facts. Reference in this regard may be made to the case of Vasuder vs. Rajabdar AIR 1970 SC 1475. In view of this, we do not find any possible reason to differ from the finding Of the High Court Division and also with the principles of law above. In view of tile nature of the decree in the instant case, best course for the appellant would be to go for a suit for Partition, if he is so advised, in case of failure of the plaintiff to Obtain possession of his 2 annas share in the suit land decreed in his favour by amicable partition.
 
10. The learned Counsel could not show any error of law or infirmity in the impugned judgment for our interference in this appeal.
 
The appeal is accordingly, dismissed without costs.
 
Ed.