Home Today's Paper Most Popular Video Gallery Photo Gallery
Subscription Blog Signin Register
Logo
Friday, February 22, 2019 03:19:35 AM
Follow Us On: Facebook Twitter Twitter Twitter Twitter
BREAKING NEWS:

No provision for fresh limitation from final order

By
09th-Feb-2019       
Comments
Share your thought
Post a comment »
Read all () »

High Court Division
(Special Original Jurisdiction)
Sheikh Hassan Arif J  }  Mohitur Rahman Choudhury (Md) and
Md Badruzzaman  J    } others………Petitioners
                                    }                 VS
Judgment                    } Md Abdul Kuddus Miah and others------
April 4th, 2017 }--------------Respondents    

Limitation Act (IX of 1908)
Article 182
Application for execution of a final decree or order is to be made within 3 (three) years from the date mentioned in 2nd column of Article 182 of the Act subject to some exceptions as detailed in the 3rd column read with provisions of Section 15 of the Act inasmuch as Article 182 makes no provision for fresh limitation from a final order passed on an application under Order IX, Rule 13 of the Code. If no stay order or injunction is passed staying the operation of the decree or order under Section 15 or no situation arises as per the 3rd column of Article 182 the decree or order would keep open for execution and time would run from the date of final decree or order…………………    (15)
Limitation Act (IX of 1908)
 Article 182
A bare reading of Article 182 of the Act suggests that an application under Order IX, Rule 13 of the Code does not come within the meaning of applications mentioned in Clause 5 of Column 3 of Article 182 of the Act to save limitation. Pendency of a case under Order IX, Rule 13 of the Code of Civil Procedure for setting aside an ex-parte decree cannot extend the period of limitation for filing execution case. . ............ (15)

Md Abdur Rahim vs Sree Sree Gredhari, 27 DLR 72; Bangladesh Jatiya Samabaya Bank Limited vs Sangbad Daily Paper, 1983 BCR (AD) 418; ADC (Revenue), Pabna vs Md Abdul Halim Miah, 48 DLR (AD) 141; Pingle Venkata Rama Reddy vs Kakaria Buchanna, AIR 1963 Andhra Pradesh (FB) 1; Lalji Raja and sons vs Firm Hansraj Nathuram, AIR 1971 (SC) 974 and Comilla Banking Corporation Limited vs Nanda Kumar Bhattacharjee, 1 PLR (Dacca) 215 ref.
Md Delwar Hossain with Salma Begum, Advocate-For the Petitioners.
Khursheed Jahan, Advocate-For the Respondent No: 5

Judgment
Md Badruzzaman J : This Rule Nisi was issued calling upon the respondents to show cause as to why Title Execution Case No. 04 of 1995, pending in the 2nd Artha Rin Adalat, Dhaka should not be declared as time barred, void and not binding upon the petitioner as being filed beyond the period of limitation of 3 (three) years under Artha Rin Adalat Ain, 1990.
2. Relevant facts for the purpose of disposal of this rule in brief, are that the petitioner No. 1 and predecessor of other petitioners availed to House Building Loan from respondent No.5 Janata Bank Limited. Being defaulted in payment by them respondent No.5 filed Title Suit No. 228 of 1986 in 1st Commercial Court, Dhaka for recovery of outstanding dues amounting to Taka 6,60,020 as on 30-9-1985. Thereafter, the case was transferred to Artha Rin Adalat No.2, Dhaka and renumbered as Title Suit No. 337 of 1990. Ultimately the suit was decreed ex-parte in preliminary form on 18-8-1990 and final decree was drawn on 4-2-1992.  The present petitioners thereafter, filed Miscellaneous Case No. 180 of 1992 under Order IX, rule 13 of the Code of Civil Procedure on 18-3-1992 for settling aside the ex-parte decree which was dismissed for default on 26-9-1992.
3. Thereafter, respondent No.5 filed Title Execution Case No.4 of 1995 on 31-8-1995 before the Adalat. During pendency of said execution case the petitioners on 17-7-2000 filed an application for dismissing the execution case as being time barred. Said application was rejected by the Adalat on 24-8-2000. The petitioners then filed an application for recalling the order dated 24-8-2000 which was also rejected vide order dated 9-1-2003. Thereafter, the petitioners again filed application for dismissing the execution case as being time barred which was also rejected by order dated 14-10-2004.
4. In the above factual background the petitioners (judgment debtors) have come up with this application and obtained the instant rule on 10-11-2004.
5. At the time of issuance of rule further proceedings of the execution case was stayed for a period of 3 (three) months which was, thereafter, extended by order dated 8-2-2005 till disposal of the rule.
6. The rule is opposed by respondent No. 5 by filing affidavit-in-opposition stating that the miscellaneous case which was filed under Order IX, rule 13 of the Code was a continuation of the suit inasmuch as the execution case was filed after 2 years 11 months and 5 days from the date of disposal of the miscellaneous case which was covered by the provisions of Article 182(2) of the Limitation Act. As such, the execution case was not barred by limitation.
7. One Md Moklasur Rahman also been added as respondent No.6 by order dated 31-82015 but at the time of hearing none appears to oppose the rule on his behalf.
8. Mr Md Delwar Hossain, learned Advocate appearing for the petitioners by drawing our attention to Article 182 of the Limitation Act submits that Article 182 of the Limitation Act prescribes provisions for filing execution case within a period of (three) years from the date of final decree or order passed in a suit with some exceptions provided in the said Article but the respondent bank without complying with the aforesaid provisions of law filed the execution case after 3 (three) years 6 (six) months and 26 (twenty six) days from the date of final decree and, as such, the execution case is barred by limitation and accordingly continuation of the said execution case is an abuse of the process of the Court and liable to be rejected. Learned Advocate further submits that Article 182 of the Limitation Act prescribes no provisions for fresh limitation from an order rejecting an application by the trial Court under Order IX, rule 13 of the Code of Civil Procedure. Further referring to Section 15 of the Limitation Act, learned Advocate submits that since no order or injunction was passed by the Adalat in the miscellaneous case staying the operation of the decree no time can be excluded in calculating the period of limitation.
9. As against the above submissions Ms Khursheed Jahan, learned Advocate appearing for respondent No.5 reiterates the contentions as has been stated in the affidavit-in opposition.
10. We have heard the learned Advocates and perused the records. It appears that an ex-parte final decree was passed on 4-2-1992 against the petitioners. Thereafter, they filed a miscellaneous case under Order IX,  Rule 13 of the Code of Civil Procedure for setting aside said ex-parte decree which was ultimately dismissed for default by order dated 26-9-1992. Respondent bank then filed Execution Case No. 04 of 1995 on 31-8-1995 i.e. after 3 (three) years 6 (six) months and 26 (twenty six) days from the date of final decree.
11. Now question arises as to whether in view of the pending miscellaneous case under Order IX, Rule 13 of the Code of Civil Procedure for setting aside the ex-parte decree limitation would be saved within the meaning of Article 182 of the Limitation Act, which determines the starting point of limitation.
12. In the case of Md Abdur Rahim vs Sree Sree Gredhari reported in 27 DLR 72 it is held that the Limitation Act prescribes that an application for execution is to be made within 3 (three) years from the date mentioned in 3rd Column of Article 182. And if such application is not filed within the prescribed period the execution case would be hit by the above Article. By adopting aforesaid view our Appellate Division in the case of Bangladesh Jatiya Samabaya Bank Limited vs Sangbad Daily Paper reported in 1983 BCR (AD) 418 expressed the same view. In a later case of ADC (Revenue)  Pabna  vs  Md Abdul Halim Miah reported in 48 DLR (AD) 143 our Apex Court held as follows:
"This Court, has however, already pronounced itself on this point in the case of Bangladesh Jatiya Samabaya Bank Limited vs Sangbad Daily Paper, BCR 1983 (AD) 418. The said decision was given on consideration of the cases of Md Abdur Rahim vs Sree Sree Gredhari reported in 27 DLR (Dhaka) 72; Pingle Venkata Rama Reddy vs  Kakaria Buchnna, AIR 1963 Andhra Pradesh (FB) 1 and Lalji Raja and sons vs Firm Hansraj Nathumm, AIR 1971 (SC) 974. This Court approved of the approach of the then Dhaka High Court in the aforecited  cases in 27 DLR (Dhaka) 72 and affirmed that both Section 48 CPC and Article 182(2) of the First Schedule of the Limitation Act provide the period of limitation for the execution of a decree. The Civil Procedure Code fixes the longest period whereas the Limitation Act fixes the earliest period of take the first step in execution and the subsequent steps known as steps-in-aid. This Court also affirmed the further view of the then Dhaka High Court that an application for execution has therefore to satisfy First Schedule Article 182 of the Limitation Act being the earliest period prescribed and then also Section 48 CPC which prescribed the maximum period of limitation. If the execution petition is hit by any of the two provisions it is to fail."
13. In similar case of the Comilla Banking Corporation Limited vs Nanda Kumar Bhattacharjee reported in 1 PLR (Dacca) 215 by a majority view of three learned Judges held as follows:
"The expression 'where there has been an appeal' cannot and does not include an appeal from an order rejecting an application under Order IX, rule 13 of the Code of Civil Procedure. Wide though literally the expression is, it cannot mean an appeal from any decree or any order passed between the parties in any suit or any proceeding. It is significant that Article 182 of Limitation Act no provision for fresh limitation from an order rejecting an application by the trial Court under Order IX. rule 13 of the Code of Civil Procedure. If it had been intended that an appeal from an order rejecting an application would keep the decree open, it would have been provided also that an application to the trial Court to set aside an ex-parte decree would keep the decree open."                                                                                                                                                      14. Section 15 of the Limitation Act also provides as follows:
"15. Exclusion of time during which proceedings are suspended-(I) In computing the period of limitation prescribed for any suit for application for the execution of a decree, the institution or execution of which has been stayed by injunction or order, the time of the continuance of the injunction or order, the day on which it was issued or made, and the day on which it was withdrawn, shall be excluded.
(2) In computing the period of limitation prescribed for any suit of which notice has been given in accordance with the requirements of any enactment for the time being in force, the period of such notice shall be excluded."
15. The above ratio and the provisions of Section 15 of the Act clearly suggest that application for execution of a final decree or order is to be made within 3 (three) years from the date mentioned in 2nd Column of Article 182 of the Limitation Act subject to some exceptions as detailed in the 3rd Column read with provisions of Section 15 of the Act in as much as Article 182 makes no provision for fresh limitation from a final order passed on an application under Order IX, Rule 13 of the Code. In other words if no stay order or injunction is passed staying the operation of the decree or order under Section 15 or no situation arises as per the 3rd Column of Article 182 the decree or order would keep open for execution and time would run from the date of final decree or order. A bare reading of Article 182 of the Limitation Act also suggests that an application under Order IX, rule 13 of the Code does not come within the meaning of applications mentioned in Clause 5 of Column 3 of Article 182 of the Limitation Act to save limitation. Accordingly, pendency of a case under Order IX, rule 13 of the Code of Civil Procedure for setting aside an ex-parte decree cannot extend the period of limitation for filing execution case.
16. Admittedly, there was no order in the miscellaneous case staying operation of the final decree. The execution case was filed on 31-8-1995 which was beyond the period of 3 (three) years from 4-2-1992, the date of final decree. Accordingly, we are of the view that the execution case was barred by limitation.
17. In view of what we have stated above we find merit in this rule.
18. In the result, the Rule is made absolute however, without any order as to costs.
19. The impugned execution proceeding as a whole is set aside as being time barred.
20. The order of stay granted earlier is hereby vacated.
Communicate a copy of this judgment at once.

Tariff
Add Rate

News Archive

Inside The New Nation

Cricket »

BD lose to NZ in third ODI


Sports Reporter :Despite Sabbir Rahman's century Bangladesh lost to New Zealand by 88 runs in the third and last One Day International (ODI) match at Dunedin in New Zealand on Wednesday. New Zealand clinched the ODI series 3-0.Sabbir hit a marvelous 102. His 110-ball innings was laced with 12 fours ...

Editorial »

True spirit of Ekushey must be reflected everywhere


THE nation solemnly remembers the supreme sacrifice of the valiant souls who laid down their lives to establish the right of our mother tongue Bangla as the state language of Pakistan on this day in 1952. As the pioneering movement that led to our ultimate independence, Ekushey invokes the emotional ...

International »

Palestinian President rejects tax money from Israel


Reuters, Ramallah, West Bank :The Palestinian Authority (PA) will no longer accept tax revenues collected on its behalf by Israel following its decision to trim the sum over the PA's financial support of militants' families, Palestinian President Mahmoud Abbas said.The cash-strapped Palestinian Authority, an interim self-government body set up following ...

City »

President of Bangladesh Diploma Student Nurses Union Sadia Akhter speaking at a press conference in DRU auditorium on Wednesday demanding Prime Minister Sheikh Hasina's intervention in resisting conspiracy to ruin nursing education.


.

Entertainment »

Strong and confident female characters attract Kriti Sanon


Actress Kriti Sanon is all set for a superb 2019 with Luka Chuppi, Arjun Patiala, Housefull 4 and Panipat. The characters the actress is essaying are strong-minded and confident as she is drawn towards such empowered characters. Kriti’s role in Bareilly Ki Barfi as Bitti was that of an independent ...

Editorial »

Prevent gas cylinder and pipeline explosions


GAS explosion has become very common in the country nowadays. Even if someone escapes death, the victim has to suffer burn injury or loss of valuable organs. The authorities concerned still did not take any effective step to control such incidents. In the latest incident, seven people including a couple ...

Entertainment »

Malaika Arora opens up about her divorce with Arbaaz Khan


Malaika Arora, who is recently making headlines for her relationship with Arjun Kapoor and the couples social PDA, recently opened up about her divorce with Arbaaz Khan on a radio show. Talking about her divorce she revealed that it was a mutual decision to part ways so that they could ...

City »

BNP Standing Committee Member Dr. Khondkar Mosharraf Hossain, among others, at a discussion organised by Bangladesh Jatiyatabadi Muktijoddha Dal at the Jatiya Press Club on Tuesday demanding release of BNP Chief Begum Khaleda Zia.


.

International »

Pakistan PM urges talks on Kashmir blast, warns India against attack


Reuters, Islamabad :Prime Minister Imran Khan said on Tuesday Pakistan was ready to cooperate with India in its investigation of a deadly bombing in the disputed Kashmir region last week, which India blamed on Pakistan, but warned of retaliation if attacked.Tension between the nuclear-armed neighbors has risen sharply over the ...

Sports »

Al Amin Zumar and Mukhtar Hossain of Daffodil International University receiving the championship trophy of the Inter-University Badminton Tournament and a cheque of Taka 15,000 from Dr Mohammed Farashuddin, Chairman, Board of Trustees of East West University, at the playground of East West University in the city on Monday.


.

Editorial »

Not memorization, students need analytical involvement


ABOUT one lakh students have applied to the Directorate of Primary Education (DPE) of the Primary and Mass Education Ministry for reexamination of their results, claiming that justice will be established if the authorities work properly. Some of students who failed in the examination alleged that they did not get ...

International »

`Crime may have been committed` by Trump: Ex-FBI official


AP, Washington :Former FBI Deputy Director Andrew McCabe said in an interview that aired Sunday that a "crime may have been committed" when President Donald Trump fired the head of the FBI and tried to publicly undermine an investigation into his campaign's ties to Russia. McCabe also said in the ...

Entertainment »

Moury Salim prefers challenging roles


Sheikh Arif Bulbon :Actress of present generation Moury Salim has been engaged with acting for many days. Though she has been busy with acting for long time but could not get the opportunity to work in challenging roles properly or the directors did not utilise her acting quality appropriately. On ...

Cricket »

Girona beat Real Madrid


BBC Online :Real Madrid missed the chance to go second in La Liga as Girona came from behind to record a surprise away win on Sunday.Casemiro powerfully headed in from Toni Kroos' deep cross from the right wing to give the hosts a first-half lead.Cristhian Stuani's penalty made it 1-1 ...

City »

Director General of Bangladesh Agricultural Research Institute Dr. Abul Kalam Azad speaking at the inaugural ceremony of a training programme on 'Marker Assisted Selection' at its seminar room in Gazipur on Monday.


.

 
Items that you save may be read at any time on your computer, iPad, iPhone or Android devices.
 
Are you new to our website? Do you have already an account at our website?
Create An Account Log in here
Email this news to a friend or like someone
Email:
Write a comment to this news