দায়বর্জন বিবৃতি (DISCLAIMER)

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District: Habiganj

In the Supreme Court of Bangladesh

High Court Division

(Civil Revisional Jurisdiction)

  Present

Mr. Justice Md. Zakir Hossain

Civil Revision No. 161 of 2020 Muzammel Hussain

....... Decree Holder-Petitioner

-Versus-

Shaheda Begum and others

...... Judgment Debtor-Opposite Parties Mr. Md. Zakir Hossain, Advocate

...... For the petitioner

Mr. Sheikh Muhammad Maju Miah, Advocate

....... For the opposite parties               

Heard on: 29.11.2023

Judgment on: 20.05.2024

At the instance of the petitioner, the Rule was issued with the

following the terms:

“Leave is granted.

Records be called for.

Let a Rule be issued calling upon the opposite party Nos. 1-7 to show cause as to why the judgment and order  dated  26.08.2019  passed  by  the  learned Additional District Judge, Hobiganj in Civil Revision No. 47 of 2013 disallowing the revisional application affirming the order dated 09.09.2013 passed by the learned Assistant Judge, Nabiganj, Hobiganj in Title Execution Case No. 02 of 2012 rejecting the case on the ground of maintainability should not be set aside and/or such other or further order or orders passed as to this Court may seem fit and proper.”


1

Facts leading to the issuance of the Rule are inter alia that the predecessor of the petitioner being plaintiff filed Title Suit No. 64 of 1999  for  specific  performance  of  contract.  The  defendant  No.  6 contested the suit. After conclusion of the trial, the learned Assistant Judge was pleased to dismiss the suit. Being aggrieved by and highly dissatisfied with judgment and decree of the learned Assistant Judge, the plaintiff preferred Title Appeal No. 55 of 2003 before the Court of the learned District Judge, Habiganj. After admitting the appeal, the learned District Judge was pleased to transmit the record of the same to the learned Joint District Judge, Second Court, Habiganj for disposal. The appeal was decreed in part as per the terms of solenama. On the basis of sole  decree,  the  decree  holder  put  the  decree  into  execution  being Execution  Case  No.  02  of  2012.  The  learned  Assistant  Judge  was pleased to dismiss the Execution Case holding the view that it cannot be granted any relief beyond the decree and the Executing Court also held that  the decree  is  barred by  limitation.  Challenging  the  legality  and propriety of the judgment and order of the learned Assistant Judge, the petitioner preferred Revisional Application No. 47 of 2013 before the Court  of  the  learned  District  Judge,  Habiganj.  After  admitting  the revisional  application  and  observing  all  the  formalities,  the  learned District Judge was pleased to transmit the record of the same to the learned Additional District Judge, Habiganj for disposal. The learned Additional District Judge rejected the revisional application holding the view that the Execution Case is barred by limitation. Impugning the judgment  and  order  of  the  learned  Additional  District  Judge,  the petitioner moved this Court and obtained the leave and Rule therewith.

Heard the submissions advanced by the learned Advocates of the parties at length and considered the materials on record thoroughly. The convoluted question of law embroiled in this case has meticulously been waded through in order to reach a just decision.

The moot issue is as to whether the case is barred by limitation or

not.

It appears from the record that the appeal was decreed in part on 25.06.2008  and  the  learned  Assistant  Judge,  Nabiganj,  Habiganj received the record of the Title Appeal No. 55 of 2003 on 20.05.02009. as per the letter dated 25.03.2024 issued by the learned Assistant Judge, Nabiganj,  Habiganj.  Admittedly,  the  Execution  Case  was  filed  on 01.04.2012, therefore, it can easily be held that the Execution Case was filed within the stipulated period of limitation as envisaged under Article 182 of the Limitation Act. But the Courts below miserably failed to compute the period of limitation as per the mandate of the Limitation Act. The period of limitation has to be computed from the date of receipt of the copy of the judgment and decree of the Appellate Court. It is inherent that the decree in a suit for Specific Performance of Contract, the decree holder shall obtain registered sale deed and possession of a decreetal land by way of execution. If the judgment debtor does not execute sale deed and hand over the possession, the Executing Court can enforce  the  decree  as  per  the  terms  of  compromise  decree.  The Executing  Court  cannot  go  behind  the  decree.  This  dictum  is  not absolute. It has got few exceptions such as (i) if the decree is obtained by practicing  fraud  or  (ii)   the  decree  passed  by  the  court  having  no jurisdiction or (iii) the decree was passed against the dead men or (iv) the decreetal property is unspecified, vague and indefinite etc. In this Case, the learned Assistant without applying his judicial mind rejected the Execution Case and the learned Additional District Judge shutting his eyes and without delving into the facts and legal ramification of the decree of specific performance of contract most illegally endorsed the order of the learned Assistant Judge, though the Execution Case was within time.

In our continent, the actual sufferings of the decree holder start after obtaining decree. The judgment debtor resisted the decree holder so that he cannot enjoy the fruits of a long cherished decree.

Having regard to the facts and circumstances of the case, I am constraint  to  hold  that  the  impugned  judgment  and  order  is  not sustainable in the eye of law, therefore, the Rule is liable to be made absolute.  

In the result, the Rule is made absolute, however, without passing any order as to costs. The earlier order of injunction granted by this Court, thus, stands recalled and vacated. The Executing Court is directed to dispose of the said Execution Case with utmost expedition preferably within  06(six)  months  from  the  date  of  receipt  of  the  copy  of  the judgment.

Let a copy of the judgment along with the LCRs be transmitted to the Courts below at once.

...............................................

Md. Zakir Hossain, J

Naser Po