Appellate Division (Civil) :
Md Abdul Wahhab Miah J
Nazmun Ara Sutana J
Md Imman Ali J
March 28th, 2017
Zainab Banu and others............Appellants
Md Nisar Uddin and others. ...........Respondents
Code of Civil Procedure (V of 1908)
At the instance of a third party in a case of exceptional circumstances, i.e. to secure the ends of justice or to prevent abuse of the process of Court, a Court in exercise of its inherent power under Section 151 of the Code can pass an order staying the further proceedings of an execution case in a separate suit where the decree giving rise to the execution case has been challenged. .. .... (13)
Code of Civil Procedure (V of 1908) Section 151
A civil court cannot exercise its inherent power under section 151 of the Code at the instance of a third party as a matter of course and before exercising such power, the Court must see that one of the two conditions must exist. And these two conditions would depend upon the facts and circumstances of each case and would entirely depend upon the wisdom of the concerned Court. In exercising the inherent power staying the proceedings of an execution case at the instance of a third party the Court must keep in mind that the mandate of the Court as contained in a decree must not be lightly ignored or evaded to the suffering of its holder. . ..... (13)
Abul Bashar vs Parafulla Kumar Das, 56 DLR (AD) 139; Paramanda Panda vs Krushna Chandra Panda, AIR (1990) Urissa 188; Mannujan Begum vs A. Samad Mollah, 29 DLR (SC) 282; Fulchand Agarwal vs Atmaram Modi, ILR (1978) 2 Cut 424 and Ahmad Abdul Sukkor vs Vallabhadas Kanji Firm, AIR 1950 Mad 219 rd.
Kamal-ul-Alam, Senior Advocate instructed by Zaimtl Abedin, Advocate-on-Record-the For the Appellants.
Shaikh Mohammad Zakir Hossain Advocate instructed by Numl Islam Bltuiyan, Advocate-on Record-For the Respondents.
None Represented -For Respondent nos. 2-6.
Md Abdul Wahhab Miah J : This appeal, by leave, is from the judgment and order dated the 21st day of October, 2008 passed by a Single Bench of the High Court Division in Civil Revision No. 2112 of 2008 discharging the Rule (in the judgment, it was wrongly mentioned as dismissed).
2. Facts necessary to dispose the appeal are that the predecessor-in-interest of the appellants and respondent No.2 as the plaintiff instituted Title Suit No. 193 of 1980 in the Court of Munsif, First Court, Noakhali for partition. Subsequently, the Slit having been transferred to the Court of Senior Assistant Judge, Chatkhil, Noakhali was renumbered as Title Suit No.286 of 2003. Eventually, the suit was decreed ex-parte in preliminary form by the judgment and decree dated 20-7~2006. Then the plaintiff levied Title Execution Case No.3 of 2007 for execution of the decree. On 15-11-2007, respondent No. I, herein named Nesantddin, filed two applications in the suit (Title Suit No.286 of 2003); one under Order I, rule 10 of the Code of Civil Procedure (the Code) to add him as a co-defendant in the suit stating that he had subsisting interest in the suit property and the other under Section 151 thereof for setting aside the ex-parte decree and restore the suit to its original file and number on the ground that the decree was obtained by practising fraud upon the Court as well as upon the parties. The learned Assistant Judge by his order dated 18-11-2007 allowed both the applications. Against the order of the learned Assistant Judge, the decree-holder filed two civil revisions being Nos. 54 and 55 of 2007 before the District Judge, Noakhali. Both the revisions were allowed by the learned District Judge by separate orders passed on the same date, i.e. on 9-4-2008 and he set aside the orders of the trial Court. Thereafter, respondent No.1 as the plaintiff filed Title Suit No.43 of 2008 in the Court of Assistant Judge, Chatkhil impleading the appellants and respondent Nos.2-6 as the defendants challenging the decree passed in Title Suit No. 286 of 2006. In the suit, the plaintiff filed an application under Section 151 of the Code for staying all further proceedings of Title Execution Case No.3 of 2007 pending in the same Court. The learned Assistant Judge by his order dated 15-5-2008 rejected the application. Challenging this order (15-5-2008), the plaintiff filed Civil Revision No.22 of 2008 before· the District Judge, Noakhali under Section 115(2) of the Code and in the said civil revision also filed an application under Section 151 of the Code for staying operation of the judgment and decree passed in Title Suit No.286 of 2003 and also for staying all further proceedings of the said execution ease. The learned District Judge, Noakhali by his order dated 20-5-2008 allowed the revision application and stayed all further proceedings of the said execution case. Against this order of the learned District Judge, the appellants filed Civil Revision No.2112 of 2008 before the High Court Division under section 115(4) of the Code and leave was granted to decide the question whether the order of stay of all further proceedings of Execution Case No.3 of 2007 of the Court of Assistant Judge, Chatkhil, Noakhali in the event of pendency of a separate suit by the 3rd party challenging the decree was legal and passed in accordance with law. A Single Bench by the impugned judgment and order discharged the Rule maintaining those of the learned District Judge.
3. Against the impugned judgment and order the appellants filed Civil Petition for Leave' to Appeal No.826 of 2009 before this Court and leave was granted to consider the following grounds:
I) . That in view of the fact that in the present Civil Suit No.43 of 2008 the plaintiff as a third party has challenged the decree passed previously in Civil Suit N 0.286 of 2003 and in view of the principle of law enunciated by the Appellate Division of the Supreme Court of Bangladesh in the case reported in 56 DLR (AD) 139 and 5 ADC 395 to the effect that mere filing of a suit challenging a decree cannot be a ground for stay of further proceedings of the Execution Case started pursuant to a decree in a suit wherein the plaintiff was a stranger and the provision of stay of Execution under order XXI, rule 29 of the Code of Civil Procedure cannot be availed of by a stranger to the decree put into execution, the learned Judge of the High Court Division committed error of law in holding that the trial court can pass an order under its inherent jurisdiction of staying the Execution case started on the basis of a decree in which the plaintiff of the subsequent suit was not a party.
II) For that the learned Judge of the High Court Division fell in error of law in not at all considering the principle of law to the effect that the trial Court of a subsequently instituted a suit not being an Appellate Court does not have any jurisdiction under any provision of law to stay further proceedings of an Execution Case started on the basis of a decree passed in a previously instituted suit and in misreading the facts and the principle of law enunciated in the case reported in AIR 1961 (Karala) 178 and AIR 1923 (Lahore) 514 and thereby erred in law in relying upon those decisions for holding that in the facts and circumstances of the present case the trial court can pass an order under its inherent jurisdiction for staying the Execution Case wherein the plaintiff was not a party, without recording any satisfaction upon a local inspection that the plaintiff of the present suit is in possession of the disputed land.
4.Mr Kamal-ul Alam, learned Advocate, for the appellants, has canvassed the grounds on which leave was granted and in support of his submissions, he has relied upon the cases of Abul Bashar vs Parafulla Kumar Das, 56 DLR (AD) 139 and Paramanda Panda vs Krushna Chandra Panda, AIR (1990) Urissa 188.
5. Mr Shaikh Zakir Hossain, learned Advocate, for plaintiff-respondent No.1, on the other hand, has supported the impugned judgment and order. He, in support of his submission referred the case of Mannujan Begum vs A. Samad Mollah, 29 DLR (SC) 282.
6. From the impugned judgment and order, it appears that the High Court Division discharged the Rule on the reasoning, inter alia, that although the provisions of Order XXI, rule 29 of the Code was not available to the third party in order to staying' the further proceedings of an execution case, yet he could get the remedy under Section 151 of the Code to secure the ends of justice or to prevent the abuse of the process of Court and that the Court could pass an order of stay, if necessary, where a person claimed that he was in possession of the disputed property and if it was sought to be delivered in a proceedings to which he was not a party it was certainly a matter that could be regarded as an abuse of the process of Court and, as such, the civil court could stay the execution case under its inherent power. The High Court Division further held that in the instant case, the third party to the decree, i.e. the plaintiff of Title Suit No.43 of 2008 did not at all file the application under Order XXI, rule 29 of the Code for staying the execution case, but under section 151 of the Code. The High Court Division further held that the plaintiff having claimed that he had a dwelling house in the suit land and has been possessing the same "after purchase of the suit land", until the matter "is investigated and adjudicated properly against the person in possession of the property and the subsequent suit is disposed of ... the Court can pass an order under its inherent jurisdiction, for staying the execution case started in a suit wherein the plaintiff was not a party." In taking the said view, the High Court Division relied upon the cases of Bhame Amma vs Bhenkappa Bhatta AIR 1961 (Kerala) 1978 and PW Fitzholmes vs Waryam Singh, AIR 1923 (Lahore) 514.
7. Let us, see whether the High Court Division was correct in taking the said view.
8. It is by now a well settled legal principle that a stranger to a decree cannot invoke of provisions of Order XXI rule 29 of the Code for" staying" the proceedings, of an execution case and for ready reference, we may refer the case of Abul Bashar (supra) as relied upon by Mr Kamal-ul-Alam.
9. Now the, question is, whether a 3rd party can take shelter under the provision of Section 151 of the Code in order to stay the further proceedings of an execution case. In the case of Bhame Amma (supra) as relied upon by the High Court Division, a Single, Bench of Kerala High Court held as under:
"In this revision petition, the learned counsel for the petitioner contended that "the provisions invoked in the application for stay, viz, Order XXI, rule 29 and 5s. 94 and 151 of the Code of Civil Procedure, do not apply to the instant case. It is true that Order XXI, rule 29 and Section 94 have little relevance in the matter; but as pointed out by the learned counsel for respondent, the prayer for a stay of the delivery proceedings can be maintained under Section 151, CPC. A Civil Court in the exercise of its powers under Section 151 CPC can stay proceedings in execution of a decree in an independent suit in the Court comes to the conclusion that in the ends of justice or to prevent abuse of the process of court such a stay is necessary. If a person is actually in possession of the property and it is sought to be delivered in a proceeding to which he was not a party it is certainly a matter that can be regarded as an abuse of the process of court and as such stayed by an Civil Court in exercise of its" inherent powers until the matter is investigated and adjudicated against the "person in possession of the property."
10. In taking the said view the Single Bench relied upon the cases of Kandapaneni Ragha Vaiah vs Inguva Lakshmi Narayana (s), AIR 1955 Andh Pm 4 and Ahmad Abdul Sukkor vs Vallabhadas Kanji Firm AIR 1950 Mad 219. In the case of Paramananda Panda (supra), a Single Bench of Orissa High Court held as under:
"In another case of Fulchand Agarwal vs Atmaram Modi, ILR (1978) 2 Cut 424, after considering the facts of the case this Court has held that before final disposal of the suit if the petitioner is evicted from the disputed house in execution of the decree against him and ultimately succeeds in the suit, the harassment that would result to him would cause irreparable injury and, therefore, the further proceedings in execution case shall be stayed till the final disposal of the suit. The two decisions of this Court, referred to supra clearly enunciate that whether the provisions of Rule 29 of Order XXI, Civil PC, will be invoked to stay the execution of a decree or not would depend upon the facts and circumstances of each case and no hard and fast rule can be laid down. But as has been held in Judhistir's Case, AIR 1969 Orissa 233 a rigorous test has to be applied to find out whether any exceptional case is made out in the subsequent suit which would primafacie indicate that the suit in all probability is likely to succeed. Even applying the aforesaid test to the present case, I am not in a position to agree with the learned counsel for the petitioner that an exceptional case has been made out so as to get the extraordinary relief of stay of further proceedings in the execution case.
So on merits also, the present case does not entitle invoking jurisdiction under R.29 Order XXI, Civil PC. If the plaintiff has failed to 'make out a case so as to invoke the jurisdiction under Order XXI, rule 29 of the Civil PC on merits, the question of the Court exercising its inherent jurisdiction under Section 151, Civil PC does not arise."
11. In the case of Munnujan Begum (supra) this Court held as under:
"13. It is no doubt correct that when a Court wants to stay the proceeding in execution of a decree, the validity of which is under investigation in an independent suit instituted in a court of coordinate jurisdiction, it can do so only by restraining the decree-holder, if he is a party before it, by means of a temporary injunction in exercise of its inherent powers under Section 151 of the Code of Civil Procedure, as the Provisions of Order XXXIX of the Code do not generally apply in terms of such a case. Since such an action can be taken in exercise of its inherent power the Court shall have to be satisfied about the justice of the case, namely, that the general conditions for granting temporary injunction as have been laid down by the judicial authorities are in existence,"
12. In the case of PW Fitzholmes (supra) a Single Bench of Lahore High Court held
" ............Now it is quite clear that the executing Court had no power 'to stay the execution under Order XXI, rule 29 of the Code of Civil Procedure, because at that time, no suit was pending before it against the decree-holder on the part of the judgment-debtor. It is, however, contended that the Court had an inherent power under Section 151 of the Code to stay execution. In my opinion, it had such a power."
13. The view taken in the cases of Bhame Amma (supra) and PW Fitzholmes (supra) by the respective Single Bench appears to us reasonable. The case of Paramanda Panda (supra) as relied upon by Mr Kamal-ul Alam is not a point in issue, Considering the principle of law enunciated in the above mentioned first two cases and the principle of law enunciated by this Court in the Mannujan Begum (supra), our considered view is that at the instance of a third party in a case of exceptional circumstances, to, secure the ends of justice or to prevent abuse of the process of Court, a Court in exercise of its inherent power under Section 151 of the Code can pass an order staying the "further proceedings of an execution case in a separate suit where the decree giving rise to the execution case has been challenged. We make it very clear that a civil court cannot exercise its
inherent power under Section 151 of the Code at the instance of a third party as a matter of course and before exercising such power, the Court must see that one of the two conditions as stated hereinbefore must exist. And these two conditions would depend upon the facts and circumstances of each case and would entirely depend upon the wisdom of the concerned Court. We would like to observe further that in exercising the inherent power under Section 151 of the Code staying the proceedings of an execution case at the instance of a third party the Court must keep in mind that the mandate of the Court as contained in a decree must not be lightly ignored or evaded to the suffering of its holder.
14. In the light of the above, let us consider the facts and circumstances of the instant case.
15. In the instant case, the plaintiff in the plaint as well as in the application under Section 151 of the Code made categorical statement that he was in possession of the suit land and he had his homestead therein. The relevant assertion made in the application under Section 151 reads as follows:
“উক্ত মামলার তপছিল ভুক্ত তথা অত্র দরখাস্তের তপছিল ভুক্ত ভূমিতে এই বাদীর সেমি পাকা বশত ঘর ও অন্যান্য অনুষ্ঠানাাদি পুকুর ও ফলন্ত ও কাঠ জাতীয অসংখ্যা গাছ গাছড়া রহিয়াছে। এমতাবস্থায় অত্র মামলা নিষ্পত্তি সাপেক্ষে নালিশী ২৮৬ নং দেং/০৩ইং মোকদ্দমার প্রচারিত রায় ডিক্রী কার্যকারিতা ¯'গিতের আদেশ হওয়া আবশ্যক। নচেৎ এই বাদীপক্ষের অপূরনীয় ক্ষতি হইবে এবং ন্যায় বিচারের বিঘœ ঘটিবে বহু মামলা মোকদ্দমার সৃষ্টি হইবে।”
১৬. ঞযব ৎবষবাধহঃ ঢ়ড়ৎঃরড়হ ড়ভ ঃযব ঢ়ষধরহঃ ৎবধফং ধং ভড়ষষড়ংি :
“এই বাদী উক্ত ভূমি খরিদের পর প্রায় ২ লক্ষ টাকা ব্যয়ে ডোবা গড় লায়েক পতিত ভূমি বাধাইয়া পূর্ণাঙ্গ বাড়িতে রূপান্তর করতঃ পূর্ববর্তী গাছের সামিলে নতুন নতুন কাঠ ফলন্ত জাতের গাছ গাছড়া লাগাইয়া বিদ্যমানভিটি মেরামত ও সংস্কার করিয়া নুরুল হক গংদের রেখে যাওয়া পুরাতন বসত ঘর ভাংগিয়া তথায় উত্তর দক্ষিণে ৩৭ ফুট পূর্ব পশ্চিমে ৩০ ফুট বিশিষ্ট সেমি পাকা একখানা বসত ঘর ও ১ খানা পাকাঘর নির্মাণ করে। উক্ত গ"হাদি নির্মাণে বাদীপক্ষের ৩ লক্ষ টাকার অধিকব্যয় হইয়াছে। বাদীপক্ষের নালিশী ভূমিতে রক্ষিত নিজকৃত পুকুর পাড়ে প্রায় ৩৫ হাজার টাকা ব্যয়ে পাকা ঘাট নির্মাণ করিয়াছেন এবং ১০,০০০ টাকা ব্যয়ে টিউবওয়েল বসাইয়া ব্যবহার করিয়া আসিতেছে এবং বাদীপক্ষের বায়ার ও বাদীপক্ষের রোপিত ও ফলন্ত (নারিকেল, আম, কামরাঙ্গা) গাছের ফল বাদীপক্ষ আহরণ ও ভক্ষণ করিয়া এবং পুকুরে মাছে চাষ করিয়া তাহা ধরিয়া খাইয়া বিবাদীসহ সর্বসাধারণের দেখাও অবগতি মতে এই বাদীপক্ষ ভোগ দখল করিয়া আসিতেছে।”
17. That the plaintiff is in possession of the suit land and has his homestead is clearly born out from the fact that the decree-holders themselves gave legal notice to him through their learned Advocate on 30-4-2009 asking him to vacate the suit premises within 30 (thirty) days from the date of receipt of the notice and then they filed Title Suit No.213 of 2009 in the Court of Senior Assistant Judge, Sadar, Noakhali for eviction terming him as licence. Subsequently the suit having been transferred in the Court of Assistant Judge, Chatkhil and the Joint District Judge, First Courts, Noakhali was renumbered as Title Suit Nos.79 of 2009 and 153 of 2012 respectively. The present plaintiff as the defendant filed written statement in the suit denying the right, title and possession of the decree-holders asserting his own title and possession therein. The suit being ready was fixed for peremptory hearing. In the meantime, on 26-11-2014, the plaintiffs filed an application to withdraw the suit and the learned Joint District Judge by his order dated 23-2-2015 allowed the plaintiff to withdraw the suit without permission to sue afresh. It also appears that at the instance of the present plaintiff, a local inspection was held to ascertain (a) what the nature of the suit land was, (b) whether was any dwelling house on the suit land, (c) whether there was any semipucca dwelling hut on the suit land, and if there be ,any, what the length and breadth of such dwelling hut was and (d) whether there were valuable trees and a gardenary in the suit land (in Bangla, it has, been stated as ÒMvQMvQvwj I evMvb Av‡Q wK?Ò). The Advocate Commissioner who had held the local' inspection in his report clearly stated that the nature of the land was. "..... f~wgi iKg evox, evMvb, cyKziÓ, that in the suit land, there was homestead, that there were two semi-pucca dwelling huts on the suit land and that there were plenty of trees and gardenary. The plaintiff who was a 3rd party in the execution case in question having categorically asserted that he had his homestead in the suit land and he was in possession thereof and on holding-local inspection, the fact of existence of dwelling houses having been found in respect of which earlier decree was passed and that the defendants themselves filed the suit for evicting him there from and thus they admitted the plaintiffs possession in the suit land prima facie shows that it would have been an abuse of the process of Court if the possession of the suit land would have been delivered to the decree holder through the execution case in question before the suit was being heard. Besides the above, in the plaint, the plaintiff also alleged fraud in obtaining the decree in the suit giving rise to the execution case in question.
18. In the above back ground, the High Court Division did not commit any error of law holding that the learned District Judge rightly passed the order saying further proceedings of the execution case in question. Therefore, no interference is called for with the impugned judgment and order.
19. However we feel that the instant suit needs to be disposed of expeditiously. Accordingly, we direct the Court below to conclude the trial expeditiously, not beyond 6 (six) months from the date of receipt of this judgment.
With the above observations and directions, the appeal is disposed of.