(Civil Revisional Jurisdiction)
Sharif Uddin
Chaklader J
Abu Taher Md
Saifur Rahman J
Sunny Fish Agency and Trading………..
… Decree-Holder-Petitioner
vs
Bangladesh Catfish Ltd and others Judgment- Debtor-Opposite Parties
Judgment
March 5th, 2014.
Code of Civil Procedure (V of 1908)
Section 2(2)
Decree is divine sacred and holy which cannot be altered, varied, modified and amended by the same court at the wish of any one. . ….. (13)
Maksud Ali vs Eskandar Ali 28 DLR (AD) 99; Bharat Heavy Electricals Ltd. vs RS Avtar Singh & Co and Motilal, Banker vs Maharaj Kumar Mahmood Hasan Khan, AIR 1968 SC 1087 ref.
Abdul Quayum. Advocate with Md Harun-ur-Rashid, Advocate-For the Decree-Holder-Petitioner.
Ramzan Ali Sikder, Advocate-For the Judgment Debtor-Opposite Parties.
Judgment
Sharif Uddin Chaklader J: This rule, at the instance of decree-holder, directed against judgment and order dated 18-10-2012 passed by the learned Joint District Judge, 1st Court, Khulna deducting the amount of vat and income tax from decree finally passed in Money Suit No. 16 of 2004.
2. Petitioner as plaintiff filed Money Suit No. 16 of 2004 for realization of Taka 6,18,57,952 with 16% interest till realization of the said amount. Upon contested hearing the suit was decreed on 16-5-2005 in the following manner i.e. the suit be decreed for Taka 2,47,50,109.60 against defendant No.2, Taka 4,62,74,473 against defendant No.3 and Taka 16,27,884.96 against defendant No.4, totaling, Taka 8,60,52,496.56, against the aforesaid defendants individually. First Appeal No. 53 of 2006 and First Appeal No. 95 of 2006 were filed before the High Court Division by judgment and decree dated 9-6-2008 heard both the appeals analogously and modified the decree and set-aside the judgment and decree of the learned Joint District Judge so far as it relates to passing decree against defendant No.2 at Taka 1,87,50,105 from Taka 2,47,50,138.60, against defendant No.3, Taka 3,50,56,419 in place of 4,62,74,473 against defendant No.4, Taka 80,51,428 in place of 16,27,884.96 totaling Taka 6,18,57,952 in place of 8,16,52,496.56. Judgment-debtors Nos. 2-4 as petitioner filed Civil Petition for Leave to Appeal No. 2495 of 2009 against the said judgment and order dated 9-6-2008 passed by the High Court Division in First Appeal No. 59 of 2006 on 30-5-2010. The Appellate Division by judgment and order, after hearing the parties, dismissed the Civil Petition, affirming the judgment of the High Court Division. Decree-holder-petitioner filed Money Execution Case No.2 of 2006 for realization of decreeta1 amount on 29-1-2006. At the time of final decision of the matter, the judgment-debtor filed application praying for deduction of vat and income tax amount from decreetal amount. Learned Judge by judgment and order allowed the application of defendant and decree was modified from Taka 12,27,46,164 to 11,18,62,352 deducting Taka 1,08,83,812 from the aforesaid amount as vat and income tax.
3. Mr Abdul Quayum with Mr Md Harunur-Rashid, learned Advocates, appearing for the decree-holder-petitioner, submits that, executing court has no jurisdiction to modify the decree finally drawn up as law did not permit to pass order frustrating the decree. Learned Advocate further submits that executing court committed an error of law in failing to appreciate that there was no such obligation upon the decree holder to pay the income tax and Vat upon the decreetal amount nor it is the requirement of any law that the judgment debtor will pay the income tax and VAT upon the decreetal amount on behalf of the decree-holder.
4. Mr Ramzan Ali Sikder, 1earned Advocate, appearing for the judgment debtor-opposite parties, on reference to Income Tax Manual, Part-1 Section 52 submits that, law permit defendant judgment-debtor to deduct the amount of income tax and VAT and can pay the amount, and after deducting the amount the judgment-debtor or defendant can pay to the decree holder the balance money to satisfy the decree. Learned Advocate relied on the case of Maksud Ali vs Eskandar Ali 28 DLR (AD) 99 and also a decision from Indian jurisdiction, made in the case of Bharat Heavy Electricals Ltd. vs RS Avtar Singh & Co by the Supreme Court of India in Civil Appeal No. 7239 of 012. In Bangladeshi decision leave was granted to consider ‘in absence of any direction in the decreetal itself requiring the Court to take steps for obtaining income tax clearance on behalf of the judgment debtors for the purpose of registration of the document, the Executing Court is not competent to take such steps.
5. In the Indian decision it has decided as:-
“An amount was to be adjusted strictly in accordance with the directions contained in the decree and in the absence of such directions adjustments be made firstly towards payment of interest and cost and thereafter towards payment of the principal amount subject, of course, to any agreement between the parties.
6. Thereafter, when the Execution Petition No. 208 of 2000 was moved, the appellant took notice and filed application under Section 47 of the CPC in EA 522 of 2000 and another application under Order XXI, Rule 26 in application EA 523 of 2000. The learned Single Judge of the Execution Court while granting time for final reply, in the EA 522 of 2000 and 523 of 2000 and rejoinder, if any, before the next date of hearing by order dated 30-1-2001 directed the appellant to deposit in Court a cheque for Rs 1,94,91,077 being the admitted amount in favour of the respondent subject to deduction of tax at source along with TDS certificate. The execution of the warrant of payment issued on 18-10-2000 was directed to be kept in abeyance. The sum of Taka 1,74,93.835 after deduction of tax at source in a sum of Rs 19,97,192 in all a sum of Rs 1,94,91,077 was realized by the respondent with an undertaking of the respondent that in case the Execution Petition found to be not maintainable, he would refund the amount of Rs 1,74,93,835 within a period of four weeks from the date of the order passed under the Execution Petition. The said order was passed on 30-1-2001 by the learned Single Judge by filing an undertaking dated 5-2-2001, the respondent also withdrew the sum of Rs 1,74,93,885. Ultimately the execution was ordered by the learned Single Judge by an order dated 12-7-2002 by calculating subsequent interest only in the remaining principal amount and dismissed the objection petition.
7. When the appellant preferred this appeal against the said order dated 12-7-2002, in EFA (OS) No. 9/2002, an interim order came to be passed on 23-8-2002 directing the appellant to deposit whatever balance amount due after deduction of TDS as per the final order passed by the learned Judge with a further order to realize the said sum subject to restitution and on furnishing security to the satisfaction of the Register.”
8. Let us now go through the relevant laws to find whether the executing court can deduct the amount from decree.
9. Before making any comment on law the fact is that defendant against the decree went up to the Appellate Division and it appears nowhere defendant claimed for such deduction. This claim has been raised after decree was finally drawn up, sealed and signed.
10. Now, we refer to the law. Rule 16 of Income Tax Manual part-I and-II and Section 52 of Income Tax Manual runs as follows:-
Deduction of tax from payment to contractors. etc:-For the purpose of making a deduction of tax under Section 52, persons responsible for making any payment (including a payment by way of an advance) to any other person (including a company, firm, association or Hindu undivided family) on account of supply of goods or execution of a contract to or with the Government or any authority, corporation or body, including its units, the activities or the principal activities of which are authorized by any Act, Ordinance, order of instrument having the force of law in Bangladesh, or any company as defined in clause (20) of Section 2 of the Ordinance or any banking company, or any insurance company or any cooperative bank established by or under any law for the time being in force or any Non-government Organization registered with NGO Affairs Bureau or any university or medical college or dental college or engineering college, shall deduct an amount calculated on the payment made at the rates laid down in the Schedule below:
Provided that the tax to be deducted or collected at the time of making payment shall be according to the rates applicable appropriate to the slab of total payments in case the payments are made in part in any financial year:
Provided further that where the Board gives a certificate in writing on the application of any assesse or class of assesses that total income of such assesse or class of assesses who is a recipient of any of any payment will be less than the minimum liable to tax or will be liable to a rate of tax less than the rate specified in the rule, the person responsible for paying any amount on account of the supply of goods or execution of contract shall, unless such certificate is cancelled by the Board pay the amount without deduction or deduct the tax at a rate less than the rate specified in this rule:
Provided further that where the Board gives a permission in writing on the application of any person responsible for paying any amount on account of the supply of goods or execution of contract under any foreign aided project in Bangladesh, full payment of the bill may be made on production of the copy of challan as proof of payment of tax deductible from such bill.”
11. Rule 16 of Income Tax Rule, 1984 is as follows:-
Deduction from payment to contractors, etc:-(1) Where any payment is to be made, whether in full or part, or by way of any advance, on account of indenting commission or shipping agency commission or supply of goods or execution of contract or sub-contract or local letter of credit (L/C) to any such person or class of persons as may be prescribed, the person responsible for making the payment shall at the time of making such payment deduct tax on the amount so payable at such rate as may be prescribed.
(2) Any amount deducted under sub-section (1) shall be deemed to be an advance payment of tax by the payee and shall be given credit for in the assessment of his tax.
12. On a reading of these two laws upon which learned Advocate Mr Ramzan Ali Sikder give much emphasis, we are of the view that these laws relating to the assessee who pay the assessed amount himself, these two laws have no implication or nexus with the payment of money decreed which is between two individuals. Such deduction of amount can be made before filing of the suit or during continuation of the suit, even after judgment but before decree being finally drawn up, not after signed and sealed. Even the defendant could pray for set off instead on paying the defendant amount himself. Learned Judge of the 1st appellate court failed to consider that such deduction amount from the decree finally passed is in gross violation of Order XX, Rule 3 of the Code of Civil Procedure. In the case of Motilal, Banker vs Maharaj Kumar Mahmood Hasan Khan, AIR 1968 SC 1087 it is held “Order XX, Rule 3 of the Code of Civil Procedure does not affect the executing court to record and enforce the compromise. Order XX, Rule 3 provides that a judgment once signed cannot afterwards be amended or altered save as provided by Section 152 or on review. The parties cannot by an agreement confer upon the Court the power to amend the decree in contravention of Order XX, Rule 3, or the power to enforce the amended shows that after the passing of the decree the court may order that payment of such terms as to payment of interest as it thinks fit. The two provisions read together show that a direction for postponement of payment of the decretal amount upon the term that the judgment-debtor should pay a reasonable rate of interest is not an alteration of, or addition to the decree.”
13. Decree is divine sacred and holy which cannot be altered, varied, modified and amended by the same court at the wish of anyone.
14. From the aforesaid discussion it can safely said that these two laws are applicable when the matter has not been gone to the court and decree has not been drawn up. In the case before our hand the decree as drawn up was maintain up to the Appellate Division.
15. Considering all these aspects of the case, we find substance in the rule.
16. In the result, the rule is made absolute without any order as to costs.
17. The judgment complained is set-aside. Communicate this judgment at once.
