Shah Newaz Ebne Mostaque and others Vs. Shah Alam and others, 55 DLR (AD) (2003) 69

Case No: Civil Petition for Leave to Appeal No. 993 of 1999

Judge: Mainur Reza Chowdhury ,

Court: Appellate Division ,,

Advocate: Md. Nawab Ali,,

Citation: 55 DLR (AD) (2003) 69

Case Year: 2003

Appellant: Shah Newaz Ebne Mostaque and others

Respondent: Shah Alam and others

Subject: Limitation, Procedural Law,

Delivery Date: 2002-3-4

 
Supreme Court  
Appellate Division  
(Civil)
 
Present:
Mahmudul Amin Choudhury CJ  
Mainur Reza Chowdhury J  
Md. Ruhul Amin J  
 
Shah Newaz Ebne Mos­taque and others
........................Petitioners  
Vs.  
Shah Alam and others
........................Respondent   
 
Judgment
March 4, 2002.
 
The Limitation Act, 1908 (IX of 1908)
Article 181  
As the execution case was pending, it was not hit by Article 181 of The Limitation Act and it is the duty of the court to proceed with the same suo muto and the decree holder is not required to file an application to proceed with the pending execution case………(4) 
 
Lawyers Involved:
Md. Nawab Ali, Advocate‑on‑Record‑For the Petitioners
Not represented‑The Respondents.
 
Civil Petition for Leave to Appeal No. 993 of 1999.  
(From the judgment of the High Court Division in Civil Revision No. 2849 of 1992.)
 
JUDGMENT
 
Mainur Reza Chowdhury J.
 
The instant civil petitioner for leave to appeal by judgment‑debtor‑petitioners arises from the judgment passed by a Single Judge of the High Court Division in Civil Revision No. 2849 of 1992 making the Rule absolute and setting aside the Order No. 24 dated 26‑10‑1992 passed by the Senior Assistant Judge, Sadar Cox's Bazar in other Execution Case No. 70 of 1964 allowing an application under section 15 1 of the Code of Civil Procedure and striking off the execution case as barred by limitation and directing restoration of possession to the judgment debtors‑petitioners in the suit property.
 
2. The facts are that the plaintiff ­respondents brought Title Suit No. 173 of 1961 in the Court of the then Munsif, Cox's Bazar against the petitioners for declaration of his title to the suit land and for khas possession after demolition of the structures standing thereon. The trial Court decreed the suit of the plaintiff‑respondent by his judgment and decree dated 14‑1‑1963. Against the aforesaid judgment and decree the defendant­ petitioners preferred Title Appeal No. 86 of 1963 in the Court of District Judge, Chittagong. The appeal was heard by the Subordinate Judge, 3rd Court, Chittagong, who by his judgment and decree dated 10‑2‑1964 dismissed the appeal and affirmed the judgment and decree of the trial Court. After disposal of the aforesaid title appeal the plaintiff‑respondent put the decree to execution by starting Execution Case No. 70 of 1964 in the Court of Senior Assistant Judge, Cox's Bazar. On the other hand, the defendant‑judgment‑debtor petitioners preferred Second Appeal No. 583 of 1964 before the then East Pakistan High Court and the High Court was pleased to stay all further proceedings of other Execution Case No. 70 of 1964 on 4‑12‑1964 till disposal of the Second Appeal. The Second Appeal No. 583 of 1964 was dismissed for default on 4‑8‑1978. On the death of the plaintiff decree‑holder and judgment debtor defendant Nos. 1‑3, their legal heirs, were duly substituted in Execution Case No. 70 of 1992. The heirs of decree‑holder filed an application for proceeding with the execution case and the Assistant Judge, Cox's Bazar allowed the prayer by his order dated 27‑5‑1992 and fixed 3‑6‑1992 for taking necessary steps in the case. By an order dated 3‑6‑1992 the Assistant Judge directed the decree‑holder to deposit Rs 300 as fee of the Nazir and Advocate Commissioner for local inspection of the suit land and ascertain if there were huts standing on the suit land. The Advocate Commissioner was appointed who inspected the suit land and submitted his report. The Nazir of the court delivered possession of the land to the decree‑holder plaintiff on 9‑6‑1992. The judgment debtor petitioners thereafter filed written objection against the report of the Nazir on 10‑6‑1992 and 29‑6‑1992. The application filed on 29‑6‑1992 was under section 151 of the Code of Civil Procedure stating, inter alia, that the starting of execution case on 20‑5‑1992 was not intimated to the judgment debtors or their Advocate and that the schedule of the decree was vague and indefinite and that the execution case in question was barred by limitation and their possession of the suit land be restored to them.
 
3. The decree holders contested the application of the judgment debtors stating, inter alia, that the judgment debtors and their engaged lawyer had knowledge of the execution case right from 20‑5‑1992 and the notices were duly served upon the substituted heirs of the original judgment debtors and that the execution proceeding was not barred by limitation. The learned Senior Assistant Judge, Cox's Bazar heard both sides on 26‑10­1992 and allowed the application of the judgment debtors and directed restoration of possession of the suit land in favour of the judgment debtors­ petitioners upon a finding that the execution proceeding was barred by limitation.
 
4. Being aggrieved by the said judgment and order the decree holders plaintiff‑respondent moved the High Court Division under section 115 of the Code of Civil Procedure. The High Court Division found that the executing court had held that the other Execution Case No. 70 of 1964 was barred by limitation as per provisions of article 181 of the Limitation Act as the case was ‘revived' after about 14 years since the dismissal of the Second Appeal No. 5 83 of 1964 on 4‑8‑1978. Article 181 of the Limitation Act provides for a limitation of 3 years with respect to application for which no period of limitation is provided elsewhere in the schedule or by section 48 of the Code of Civil Procedure, 1908. Section 48 of the Code of Civil Procedure as mentioned in Article 181 provides for a limitation of 12 years in a case where an application is made to execute a decree. Neither in Article 181 of the Limitation Act nor in section 48 of the Civil Procedure Code the term ‘revival' occurs. Neither refers to pending cases. Admittedly the decree holder respondents started the instant execution case on 18‑4‑1964 which was well within the period of limitation of 3 years from the decree. The High Court Division found that the case had a chequered history after the filing of the suit in year 1961. It culminated in the dismissal of the Second Appeal No. 583 of 1964 on 4‑8‑1978. This second appeal was taken by the judgment debtors‑petitioners. So, it was clear that the judgment debtors were not altogether in the dark about the proceedings of the case. The judgment debtor had filed an application for passing an order that the execution proceeding was barred by limitation and that possession of the suit property had been restored to them. The High Court Division was of the view that the central point that called for determination was whether the execution proceeding was barred by limitation for not having been proceeded with for a period of about 14 years and whether the period of limitation would be guided and governed by either article 181 of the Limitation Act or under section 48 of the Code of Civil Procedure. It was of the opinion that article 181 of the Limitation Act or section 48 of the Code of Civil Procedure would be applicable in a case where application was made for the execution of the decree for the first time. The High Court Division referred to decision reported in AIR 1964 (Assam) 64, AIR 1940 (Allahabad) 151 (FB). In the Allahabad case it was revealed that mortgage suit was decreed on the 5th January 1928 and final decree under Order XXXIV rule 5 of the Code of Civil Procedure was passed in favour of the mortgagee 9th August, 1928. The decree holders applied for execution of the decree on 19th December 1930. The matter passed through several stages. The decree holders then applied for execution of the mortgage decree against the judgment debtors on 25th July, 1935. The judgment‑debtors objection was that it was barred by limitation. In the course of arriving of the decision by the full Bench several decisions were referred to and relied upon and it was the considered view that the decree‑holders were not required to file an application for proceeding with the pending execution case and it was the duty of the court to proceed with the same suo moto. The High Court Division therefore held that in the instant case the responsibility lay with the executing court to proceed with the execution case suo moto after dismissal of Second Appeal No. 5 83 of 1964 and therefore, the executing court had wrongly held that the execution case in question was barred by limitation as per provision of Article 181 of the Limitation Act. The execution case was a pending case and was not hit by Article 181 of the Limitation Act. The impugned judgment and order was therefore held to be not legally sustainable by the High Court Division.
 
5. We are in agreement with the judgment of the High Court Division that the Execution Case No. 70 of 1964 having been filed on 18‑4‑1964 i.e. within 3 years from the date of decree on 10‑2­1964 it was well within the period of limitation under Article 181 of the Limitation Act and section 48 of the Code of Civil Procedure.
 
The petition is therefore dismissed.
 
Ed.