High Court Division :
(Civil Revisional Jurisdiction)
Sheikh Abdul Awal J
Goolshan Ara Begum……..
………. Plaintiff-Petitioner
vs
Syed Maroof Ahmed……….. Opposite Party
Judgment
September 2nd, 2015.
Code of Civil Procedure (V of 1908)
Section 151 read with
Order XXI, rule 100
Whole relief granted to the 3rd party applicant on an application under Section 151 of the Code before disposal of the miscellaneous case under Order XXI, rule 100 of the Code for restoration of possession without taking any evidence as well as without giving any chance to the decree holder to file written objection, which is against the basic norms of adjudication and principles of natural justice. . ….. (11)
Code of Civil Procedure (V of 1908) Section 2(2)
Decree-Executing Court cannot travel beyond the decree. . … (12)
Md Bodruddoza with Helal Uddin. Advocates—For the Petitioner
Md Faruque Ahmed, Advocate—For the Opposite Party No. 1, 3rd Party Applicant
Judgment
Since both the Rules are between the same parties and the question raised in both the Rules are connected with each other and, as such, both the cases have been heard together and are being disposed of by this common judgment.
2. Material facts of the case, briefly, are that the petitioner as plaintiff filed title suit No. 368 of 2005 for declaration of title in respect of 1-1/4 decimals of land (2 schedule of the plaint) and recovery of khas possession in respect of 0.14 acre i.e. more than 1-1/4 decimal of land ( 4th schedule of the plaint) against the defendant. The said suit was subsequently renumbered on transfer as title suit No.107 of 2012. Ultimately, the suit was decreed by ex parte judgment and decree dated 7-11-2013 and thereafter, the decree holder plaintiff-petitioner put the decree into execution by filing execution case No.1 of 2014 in which the plaintiff decree holder got possession of total 0.1721 acres of land instead of 1-1/4 decimals of land.
3. In this background on 30-4-2014 the opposite party No.1 herein as 3-1rd party applicant filed an application under Order XXI, rule 100 of the Code of Civil Procedure for restoration of possession before the Executing Court on the allegation that the ex parte decree obtained by the plaintiff practicing fraud upon the court so the ex parte decree is no decree in the eye of law which is liable to be declared fraudulent and void decree. Thereafter, opposite party No.I-3rd party applicant on 8-6-2014 filed an application under Section 151 of the Code of Civil Procedure for an adinterim order of restoration of possession mainly on 2 counts that: (i) Ex parte decree obtained by practicing fraud upon the court so the ex parte decree is no decree in the eye of law which is liable to be declared as fraudulent and void decree (ii) possession of the land was delivered beyond the decree by evicting the 3rd party applicant through court and, as such, court’s officers committed the mistake and the mistake may be corrected under the provisions of section 151 of the Code of Civil Procedure.
4. The learned Senior Assistant Judge, Additional Court, Sadar, Sylhet after hearing both the sides by his order dated 25-6-2014 allowed the application for restoration of possession .
5. Being aggrieved by the said order dated 25-6-2014 the decree holder plaintiff petitioner filed Civil Revision No. 29 of 2014 before the learned District Judge, Sylhet, who by impugned judgment and order dated 29-6-2014 rejected the revision summarily and the instant civil revision is directed against that judgment dated 29-6-2014.
6. Mr Md Bodruddoza, the learned Advocate appearing for the petitioner submits the learned District Judge, Sylhet erred in law in rejecting the civil revision summarily without properly considering the facts of the case and the case made out by the petitioners that the executing Court granted full relief in allowing the application under Section 151 of the Code of Civil Procedure filed by a 3rd party for restoration of possession of the land under decree and the same has occasioned failure of justice. Mr Bodruddoza further submits that both the Courts below acted illegally in failing to consider that Misc. Case No.5 of 2014 under Order XXI, rule 100 of CPC tied by the 3rd party applicant with a malajide intention to frustrate the execution proceedings and thereby most illegally allowed the application under Section 151 of the Code of Civil Procedure for restoration of possession of the land under decree filed by the 3rd party without giving any opportunity for filing written objection which resulted in the failure of justice. Mr Bodruddoza further, submits that in any event, this is not a case in which the executing Court has jurisdiction to grant full relief asked for by the 3rd party in an application under Section 151 of the Code of Civil Procedure without taking evidence and, as such, the executing Court acted beyond his jurisdiction in allowing the application by its order dated 25-6-2014 and the revisional Court below without properly applying his judicial mind into the facts and circumstances of the case and law bearing on the subject mechanically affirmed the same by the impugned judgment and the same has resulted in an error in the impugned decision occasioning failure of justice.
7. Drawing my attention to Order No. 40 dated 6-7-2014 passed by the executing Court, Mr Bodruddoza submits that the executing Court by its order dated 6-7-2014 stayed all further proceedings of the execution case in the following language ”??????? ??????????? ??????? ????? ????? ???????? ????????????, ???????? ??????? ???? ??????? ?????? ??????? ????????? ?????? ??? ????” ???, subsequently the executing Court deliberately ignoring the said order dated 6-7-2014 as well as Advocate’s certificate most illegally handed over possession of the suit land to 3rd party applicant with the help of the police force by its order dated 25-6-2014 and, as such, the Judge of the executing court is 1iable to be punished for violation of the order of this court dated 6-7-2014.
8. Mr Md. Faruque Ahmed, the learned Advocate appearing on behalf of the opposite party No.1 (3rd party applicant), on the other hand, relying on the decisions reported in 42 DLR 434, 7 MLR(AD) 169 and 5 MLR 24 made submission in support of the impugned judgment as well as order of the executing Court dated 6-7-2014.
9. I have considered the submissions of the learned Advocate for the parties concerned and perused the impugned judgment and other connected papers including the counter affidavit and violation of miscellaneous case being Civil Rule No. 702 of 2014.
10. On scrutiny of the record, it appears that the present petitioner as plaintiff filed Title Suit No. 368 of 2005 for declaration of title and recovery of khas possession. The said suit was subsequently renumbered on transfer as Title Suit No.107 of 2012 and ultimately the suit was decreed ex parte and thereafter, the plaintiff-petitioner filed Execution Case No. 1 of 2014 to execute the ex parte decree dated 7-11-2013 and during the pendency of the said Execution Case the present opposite party No.1 as 3rd party-applicant filed an application under Order XXI, rule 100 CPC for restoration of possession which was registered as Misc. Case No.5 of 2014. Soon thereafter, the 3rd party-applicant, Haji Syed Maroof Ahmed filed an application under Section 151 CPC for restoration of possession mainly on the ground that the possession was delivered beyond the schedule land of decree by evicting the 3rd party-applicant through Court and, as such, the 3rd party-applicant is entitled to get back possession of his land. It further appears that the executing Court by its order dated 25-6-2014 allowed the application for restoration of possession on the finding that “it is difficult to understand how a 3rd party could be evicted from his owned land which is not disputed matter in the suit” and the revisional Court below in its turn affirmed the said order of the executing Court.
11. On a close perusal of the entire materials on record, it appears that 14 decimals of land under plot No.428 is a disputed plot in the original title suit being Title Suit No. 368 of 2005 and the said suit was admittedly decreed ex parte by ex parte decree dated 7-11-2013. Therefore, I fail to understand that why the executing Court abruptly arrived at a finding that “it is difficult to understand how a 3m party could be evicted from his owned land which is not disputed matter in the suit” and, on this finding allowed the application under Section 151 CPC for restoration of possession. It further appears the learned District Judge, Sylhet arrived at a finding that “????? ?????? ????? ?? ????? ???? ????? ?? ? ??? ?? ????? ????????? ?????? ??? ???? ???? ????????? ???? ??? ?? ????? ?? ????? ???? ???? ???????? ????? ????????? ???????” But in the end the learned District Judge rejected the civil revision summarily by the impugned judgment dated 29-6-2014. So, the executing Court appears to have misconceived the facts and law inasmuch as the miscellaneous case under Order XXI, rule 100 CPC for restoration of possession preferred by the 3rd party applicant still remained unresolved question of fact. The order of the executing Court dated 25-6-2014 is liable to be set-aside only on the ground that whole relief granted to the 3rd party applicant on an application under Section 151 CPC before disposal of the miscellaneous case under Order XXI, rule 100 CPC for restoration of possession without taking any evidence as well as without giving any chance to the decree holder plaintiff to file written objection, which is against the basic norms of adjudication and principles of natural justice.
12. The proposition of law is by now settled that the executing Court cannot travel beyond the decree. I have already indicated that 14 decimals of land under plot No. 428 as described in the schedule of the plaint is disputed plot in the original suit in which ex parte decree was passed. Therefore, I find no hesitation to hold that the learned District Judge, Sylhet in its turn acted illegally in rejecting the revision summarily and affirming the order of the executing Court dated 25-6-2014.
13. Another striking feature of this case is that the executing Court by its order dated 6-7-2014 stayed all further proceedings of the execution case in the following language ”??????? ??????????? ??????? ????? ????? ???????? ????????????, ???????? ??????? ???? ??????? ?????? ??????? ????????? ?????? ??? ????” But, subsequently the executing Court deliberately ignoring his own order dated 6-7-2014 and Advocate’s certificate most illegally by order dated 25-6-2014 handed over possession of the suit land to 3rd party applicant with the help of the police force. Therefore, 1 find no difficulty whatsoever in holding that impugned order 25-6-2014 passed by the executing court is a product of surmise and conjecture.
14. For the reasons stated above the impugned judgment of the lower revisional and the order of the executing Court dated 25-6-2014 not deserve to be sustained.
15. In the result, the Rule is made absolute.
The impugned judgment and order dated 29-6-2014 passed by the learned District Judge, Sylhet in Civil Revision No. 29 of 2014 rejecting the revision summarily and affirming the order dated 25-6-2014 passed by the learned Senior Assistant Judge, Additional Court, Sadar, Sylhet in Misc. Case No.5 of2014 allowing the application under section 151 of the Code of Civil Procedure is setaside.
16. In a case of this nature, the executing Court concerned is directed to hear and dispose of the Misc. Case No. 5 of 2014 within 3(three) months from the date of receipt of this judgment without giving any adjournment to any of the parties. However, in the attending facts and circumstance of the case the parties are directed to maintain status-quo in respect of possession of the suit land till disposal of the misc. Case No.5 of 2014.
17. It is found that in the violation Misc. Case, Mr Mohammad Sahidul Amin, Senior Assistant Judge has given reply stating that: “even while conducting the cases if any unintentional mistake has been caused by me, due to inadvertence, lack of experience which all would have been purely unintentional, 1 tender my unconditional apology to the Honourable Court, so that your honour may be pleased enough to accept my apology and have mercy upon me.”
18. Taking into consideration of the aforesaid statement made by Mr Mohammad Sahidul Amin, Senior Assistant Judge, I give him a last chance to rectify him since he tendered unconditional apology. Therefore, I administer a caution upon Mr Mohammad Sahidul Amin, Senior Assistant Judge that he should be diligent in dealing with the cases in future.
19. With this observation, the violation of miscellaneous case being Civil Rule No.720 (Violation)(R) of 20 14 is disposed of.
Let a copy of this judgment be communicated to the Court concerned at once.
(Civil Revisional Jurisdiction)
Sheikh Abdul Awal J
Goolshan Ara Begum……..
………. Plaintiff-Petitioner
vs
Syed Maroof Ahmed……….. Opposite Party
Judgment
September 2nd, 2015.
Code of Civil Procedure (V of 1908)
Section 151 read with
Order XXI, rule 100
Whole relief granted to the 3rd party applicant on an application under Section 151 of the Code before disposal of the miscellaneous case under Order XXI, rule 100 of the Code for restoration of possession without taking any evidence as well as without giving any chance to the decree holder to file written objection, which is against the basic norms of adjudication and principles of natural justice. . ….. (11)
Code of Civil Procedure (V of 1908) Section 2(2)
Decree-Executing Court cannot travel beyond the decree. . … (12)
Md Bodruddoza with Helal Uddin. Advocates—For the Petitioner
Md Faruque Ahmed, Advocate—For the Opposite Party No. 1, 3rd Party Applicant
Judgment
Since both the Rules are between the same parties and the question raised in both the Rules are connected with each other and, as such, both the cases have been heard together and are being disposed of by this common judgment.
2. Material facts of the case, briefly, are that the petitioner as plaintiff filed title suit No. 368 of 2005 for declaration of title in respect of 1-1/4 decimals of land (2 schedule of the plaint) and recovery of khas possession in respect of 0.14 acre i.e. more than 1-1/4 decimal of land ( 4th schedule of the plaint) against the defendant. The said suit was subsequently renumbered on transfer as title suit No.107 of 2012. Ultimately, the suit was decreed by ex parte judgment and decree dated 7-11-2013 and thereafter, the decree holder plaintiff-petitioner put the decree into execution by filing execution case No.1 of 2014 in which the plaintiff decree holder got possession of total 0.1721 acres of land instead of 1-1/4 decimals of land.
3. In this background on 30-4-2014 the opposite party No.1 herein as 3-1rd party applicant filed an application under Order XXI, rule 100 of the Code of Civil Procedure for restoration of possession before the Executing Court on the allegation that the ex parte decree obtained by the plaintiff practicing fraud upon the court so the ex parte decree is no decree in the eye of law which is liable to be declared fraudulent and void decree. Thereafter, opposite party No.I-3rd party applicant on 8-6-2014 filed an application under Section 151 of the Code of Civil Procedure for an adinterim order of restoration of possession mainly on 2 counts that: (i) Ex parte decree obtained by practicing fraud upon the court so the ex parte decree is no decree in the eye of law which is liable to be declared as fraudulent and void decree (ii) possession of the land was delivered beyond the decree by evicting the 3rd party applicant through court and, as such, court’s officers committed the mistake and the mistake may be corrected under the provisions of section 151 of the Code of Civil Procedure.
4. The learned Senior Assistant Judge, Additional Court, Sadar, Sylhet after hearing both the sides by his order dated 25-6-2014 allowed the application for restoration of possession .
5. Being aggrieved by the said order dated 25-6-2014 the decree holder plaintiff petitioner filed Civil Revision No. 29 of 2014 before the learned District Judge, Sylhet, who by impugned judgment and order dated 29-6-2014 rejected the revision summarily and the instant civil revision is directed against that judgment dated 29-6-2014.
6. Mr Md Bodruddoza, the learned Advocate appearing for the petitioner submits the learned District Judge, Sylhet erred in law in rejecting the civil revision summarily without properly considering the facts of the case and the case made out by the petitioners that the executing Court granted full relief in allowing the application under Section 151 of the Code of Civil Procedure filed by a 3rd party for restoration of possession of the land under decree and the same has occasioned failure of justice. Mr Bodruddoza further submits that both the Courts below acted illegally in failing to consider that Misc. Case No.5 of 2014 under Order XXI, rule 100 of CPC tied by the 3rd party applicant with a malajide intention to frustrate the execution proceedings and thereby most illegally allowed the application under Section 151 of the Code of Civil Procedure for restoration of possession of the land under decree filed by the 3rd party without giving any opportunity for filing written objection which resulted in the failure of justice. Mr Bodruddoza further, submits that in any event, this is not a case in which the executing Court has jurisdiction to grant full relief asked for by the 3rd party in an application under Section 151 of the Code of Civil Procedure without taking evidence and, as such, the executing Court acted beyond his jurisdiction in allowing the application by its order dated 25-6-2014 and the revisional Court below without properly applying his judicial mind into the facts and circumstances of the case and law bearing on the subject mechanically affirmed the same by the impugned judgment and the same has resulted in an error in the impugned decision occasioning failure of justice.
7. Drawing my attention to Order No. 40 dated 6-7-2014 passed by the executing Court, Mr Bodruddoza submits that the executing Court by its order dated 6-7-2014 stayed all further proceedings of the execution case in the following language ”??????? ??????????? ??????? ????? ????? ???????? ????????????, ???????? ??????? ???? ??????? ?????? ??????? ????????? ?????? ??? ????” ???, subsequently the executing Court deliberately ignoring the said order dated 6-7-2014 as well as Advocate’s certificate most illegally handed over possession of the suit land to 3rd party applicant with the help of the police force by its order dated 25-6-2014 and, as such, the Judge of the executing court is 1iable to be punished for violation of the order of this court dated 6-7-2014.
8. Mr Md. Faruque Ahmed, the learned Advocate appearing on behalf of the opposite party No.1 (3rd party applicant), on the other hand, relying on the decisions reported in 42 DLR 434, 7 MLR(AD) 169 and 5 MLR 24 made submission in support of the impugned judgment as well as order of the executing Court dated 6-7-2014.
9. I have considered the submissions of the learned Advocate for the parties concerned and perused the impugned judgment and other connected papers including the counter affidavit and violation of miscellaneous case being Civil Rule No. 702 of 2014.
10. On scrutiny of the record, it appears that the present petitioner as plaintiff filed Title Suit No. 368 of 2005 for declaration of title and recovery of khas possession. The said suit was subsequently renumbered on transfer as Title Suit No.107 of 2012 and ultimately the suit was decreed ex parte and thereafter, the plaintiff-petitioner filed Execution Case No. 1 of 2014 to execute the ex parte decree dated 7-11-2013 and during the pendency of the said Execution Case the present opposite party No.1 as 3rd party-applicant filed an application under Order XXI, rule 100 CPC for restoration of possession which was registered as Misc. Case No.5 of 2014. Soon thereafter, the 3rd party-applicant, Haji Syed Maroof Ahmed filed an application under Section 151 CPC for restoration of possession mainly on the ground that the possession was delivered beyond the schedule land of decree by evicting the 3rd party-applicant through Court and, as such, the 3rd party-applicant is entitled to get back possession of his land. It further appears that the executing Court by its order dated 25-6-2014 allowed the application for restoration of possession on the finding that “it is difficult to understand how a 3rd party could be evicted from his owned land which is not disputed matter in the suit” and the revisional Court below in its turn affirmed the said order of the executing Court.
11. On a close perusal of the entire materials on record, it appears that 14 decimals of land under plot No.428 is a disputed plot in the original title suit being Title Suit No. 368 of 2005 and the said suit was admittedly decreed ex parte by ex parte decree dated 7-11-2013. Therefore, I fail to understand that why the executing Court abruptly arrived at a finding that “it is difficult to understand how a 3m party could be evicted from his owned land which is not disputed matter in the suit” and, on this finding allowed the application under Section 151 CPC for restoration of possession. It further appears the learned District Judge, Sylhet arrived at a finding that “????? ?????? ????? ?? ????? ???? ????? ?? ? ??? ?? ????? ????????? ?????? ??? ???? ???? ????????? ???? ??? ?? ????? ?? ????? ???? ???? ???????? ????? ????????? ???????” But in the end the learned District Judge rejected the civil revision summarily by the impugned judgment dated 29-6-2014. So, the executing Court appears to have misconceived the facts and law inasmuch as the miscellaneous case under Order XXI, rule 100 CPC for restoration of possession preferred by the 3rd party applicant still remained unresolved question of fact. The order of the executing Court dated 25-6-2014 is liable to be set-aside only on the ground that whole relief granted to the 3rd party applicant on an application under Section 151 CPC before disposal of the miscellaneous case under Order XXI, rule 100 CPC for restoration of possession without taking any evidence as well as without giving any chance to the decree holder plaintiff to file written objection, which is against the basic norms of adjudication and principles of natural justice.
12. The proposition of law is by now settled that the executing Court cannot travel beyond the decree. I have already indicated that 14 decimals of land under plot No. 428 as described in the schedule of the plaint is disputed plot in the original suit in which ex parte decree was passed. Therefore, I find no hesitation to hold that the learned District Judge, Sylhet in its turn acted illegally in rejecting the revision summarily and affirming the order of the executing Court dated 25-6-2014.
13. Another striking feature of this case is that the executing Court by its order dated 6-7-2014 stayed all further proceedings of the execution case in the following language ”??????? ??????????? ??????? ????? ????? ???????? ????????????, ???????? ??????? ???? ??????? ?????? ??????? ????????? ?????? ??? ????” But, subsequently the executing Court deliberately ignoring his own order dated 6-7-2014 and Advocate’s certificate most illegally by order dated 25-6-2014 handed over possession of the suit land to 3rd party applicant with the help of the police force. Therefore, 1 find no difficulty whatsoever in holding that impugned order 25-6-2014 passed by the executing court is a product of surmise and conjecture.
14. For the reasons stated above the impugned judgment of the lower revisional and the order of the executing Court dated 25-6-2014 not deserve to be sustained.
15. In the result, the Rule is made absolute.
The impugned judgment and order dated 29-6-2014 passed by the learned District Judge, Sylhet in Civil Revision No. 29 of 2014 rejecting the revision summarily and affirming the order dated 25-6-2014 passed by the learned Senior Assistant Judge, Additional Court, Sadar, Sylhet in Misc. Case No.5 of2014 allowing the application under section 151 of the Code of Civil Procedure is setaside.
16. In a case of this nature, the executing Court concerned is directed to hear and dispose of the Misc. Case No. 5 of 2014 within 3(three) months from the date of receipt of this judgment without giving any adjournment to any of the parties. However, in the attending facts and circumstance of the case the parties are directed to maintain status-quo in respect of possession of the suit land till disposal of the misc. Case No.5 of 2014.
17. It is found that in the violation Misc. Case, Mr Mohammad Sahidul Amin, Senior Assistant Judge has given reply stating that: “even while conducting the cases if any unintentional mistake has been caused by me, due to inadvertence, lack of experience which all would have been purely unintentional, 1 tender my unconditional apology to the Honourable Court, so that your honour may be pleased enough to accept my apology and have mercy upon me.”
18. Taking into consideration of the aforesaid statement made by Mr Mohammad Sahidul Amin, Senior Assistant Judge, I give him a last chance to rectify him since he tendered unconditional apology. Therefore, I administer a caution upon Mr Mohammad Sahidul Amin, Senior Assistant Judge that he should be diligent in dealing with the cases in future.
19. With this observation, the violation of miscellaneous case being Civil Rule No.720 (Violation)(R) of 20 14 is disposed of.
Let a copy of this judgment be communicated to the Court concerned at once.
