Shafiqur Rahman Vs. Bangladesh Jatiya Samabaya Bank, 53 DLR (2001) 78

Case No: Civil Revision No. 681 of 1986

Judge: Md. Abdur Rashid ,

Court: High Court Division,,

Advocate: Mr. A. J. Mohammad Ali,Mr. M. A. Azim Khair ,,

Citation: 53 DLR (2001) 78

Case Year: 2001

Appellant: Shafiqur Rahman

Respondent: Bangladesh Jatiya Samabaya Bank

Subject: Limitation,

Delivery Date: 2000-12-6

Supreme Court
High Court Division
(Civil Revisional Jurisdiction)
 
Present:
Md. Abdur Rashid, J.
 
Shafiqur Rahman
………………..Petitioner
Vs.
Bangladesh Jatiya Samabaya Bank
………………..Opposite Party
 
Judgment
December 6, 2000.
 
Code of Civil Procedure (V of 1908)
Section 48
Limitation Act (IX of 1908)
Article 182
An execution to be validly proceeded with must satisfy that the application last in point of time for execution was not made after the expiration 12 years and also not beyond three years from the date of decree or order, or appellate decree or order.
 
Cases Referred To-
ADC (Revenue) Pabna Vs. Md Abdul Halim Miah, 48 DLR (AD) 141; Bangladesh JS Bank Vs. Sangbad, 36 DLR (AD) 5.
 
Lawyers Involved:
AJ Mohammad Ali, Advocate—For the Petitioner.
MMA Azim Khair, Advocate— For the Opposite Party.
 
Civil Revision No. 681 of 1986.
 
JUDGMENT
 
Md. Abdur Rashid J.
 
1. This Rule was obtained by the judgment-debtor upon making an application under section 115 of the Code of Civil Procedure against order No.91 dated.13-09-86 passed by the executing Court, Subordinate Judge and Commercial Court No.1 at Dhaka in Money Execution Case No. 76 of 1985.
 
2. It appears from the record that opposite party Bangladesh Jatiya Samabaya Bank obtained a money decree dated 05-09-56 for Taka 49,604.08 in Money Suit No. 13 of 1956 against the petitioner and another.
 
3. Decree-holder started unsuccessfully Money Execution Case No. 8 of 1957 on 12-06-58; Money Execution Case No. 2 of 1960 on 15-03-60; and Money Execution Case No. 10 of 1966 on 12-12-66. Money Execution Case No. 10 of 1966 was dismissed for default on 17-12-68. Order of dismissal was, however, set aside by the executing Court vides its order dated 15-02-69.  Said order setting aside the order of dismissal was set aside by this Division on 26-04-7 6 in Civil Revision No. 309 of 1967 and the order of dismissal of the execution was confirmed. Thereafter, in Civil Appeal No. 30 of 1980, the Appellate Division by order dated 09-09-80 upheld the order of Subordinate Judge restoring the execution Case under section 151 of the Code of Civil Procedure and set aside the order of this Division dated 26-04-76 dismissing Money Execution Case No. 10 of 1966, and restored the execution Case to its file and number.
 
4. The opposite party-decree-holder, thereafter, put again said decree in execution and Money Execution Case No. 76 of 1985 was registered on 28-03-85. On 13-09-86 objections were raised on behalf of the petitioner-judgment debtor to the continuance of the execution as it was barred by limitation. The executing Court by its order passed on the same date rejected the application on the ground that ‘after repeal of section 47 of the Code of Civil Procedure the application is not maintainable in its present form.’
 
5. Mr AJ Mohammad Ali, the learned Advocate appearing for the petitioner submits that the execution proceeding is barred both under the provisions of section 48 of the Code of Civil Procedure and article 182 of the Limitation Act and the executing Court, therefore, committed serious error in rejecting the application for dismissal of the executing proceeding without reference to provision of section 48 of the Code of Civil Procedure and/or article 142 of the Limitation Act.
 
6. Mr Anwarul Azim Khair, the learned Advocate appearing for the opposite party, submitted that Towfique Ahmed Rahman, an heir of judgment-debtor late Shafiqur Rahman, Senior Advocate of the Supreme Court wrote on 26-11 -94 to the decree holder expressing his readiness to re-pay the outstanding dues of his father on certain conditions. The said letter was then forwarded to legal Adviser for necessary opinion. Upon such letter, Mr Anwarul Azim Khair submits that if the Case is remanded to the executing Court the parties would have chance to settle the dispute amicably.
 
7. Under section 48 of the Code of Civil Procedure fresh application for execution presented after the expiration of 12 years from the date of decree sought to be executed has been barred. Under article 182 of the Limitation Act time for execution of a decree is three years from the date of the decree or order; or the date of final decree or order of the appellate Court. In view of the provisions, an execution to be validly proceeded with must satisfy that, the application last in point of time for execution was not made after the expiration of the period of 12 years and also not beyond three years from the date of decree or order, or appellate decree or order. In the case of ADC (Revenue), Pabna Vs. Md. Abdul Halim Miah, 48 DLR (AD) 141 it was held that “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 of the Code of Civil Procedure which prescribed maximum period of limitation. If the execution petition is hit by any of the two provisions it is to fail.”
 
8. In the Case of Bangladesh JS Bank Vs. Sangbad, 36 DLR (AD) 5, it was held,
 
“Even if successive applications are filed within 3 years of each order, it will not avail the decree holder if the last one is not put in within the period specified in section 48.”

The present Money Execution Case No. 76 of 1985 was started on the application for execution made on 28-03-85 which is far beyond 12 years from the date of decree dated 05-09-56 and also beyond 3 years from the date of appellate order of the Appellate Division on 9-9-84 passed in Civil Appeal No. 30 of 1980. The present proceeding, therefore, is barred by both special provisions of section 48 of the Code of Civil Procedure and general provisions of article 182 of the Limitation Act
 
9. When the very execution proceeding is still-born, there is no scope for further proceeding in the matter. However, the application shown to me was addressed to the decree holder. The application is also as back as of a date 26-11-94. No decision appears to have been taken thereupon. Such an application does not deserve any consideration by this Division.
 
10. For the reasons stated above, the order of the executing Court dated 13-09-86 is, therefore, totally misconceived. Without reading the provisions of section 48 of the Code of Civil Procedure and article 182 of Limitation Act how the objections of judgment-debtor were rejected is also not understood. I, therefore, have no hesitation to say that the execution Court committed serious error of law in rejecting the application for dismissal of the time barred execution proceeding which resulted in an error in its decision occasioning failure of justice. In the result, the Rule is made absolute. No order as to cost. Money Execution Case No. 76 of 1985 is dismissed. Communicate this order to the executing Court at once. The order of stay granted earlier by this Court at the time of issuance of the Rule is hereby re-called and vacated.
 
Ed.