District: Mymensingh

IN THE SUPREME COURT OF BANGLADESH

HIGH COURT DIVISION

(CIVIL REVISIONAL JURISDICTION)

   Present

Mr. Justice Sardar Md. Rashed Jahangir

Civil Revision No. 1076 of 2023

In the matter of :

Md. Abdur Rashid and others

… Petitioners

-Versus-

Md. Dulal Mia

…Opposite party Ms. Nahid Yesmin, Advocate

…For the petitioners

Mr. Mohammad Mehdi Hasan, Advocate

…For the opposite party

      Heard on: 23.10.2024 and 13.11.2024      Judgment on: 20.11.2024

Rule was issued on leave, calling upon the opposite party to show cause as to why the judgment and order dated 07.11.2022 passed  by  the  Senior  District  Judge,  Mymensingh  in  Civil Revision No. 41 of 2021 rejecting the revision, affirming the order No. 48 dated 02.11.2021 passed by the Senior Assistant Judge, Ishwargonj, Mymensingh in Other Execution Case No. 14 of 2015 rejecting the application filed under Order XXI, rule 29 read with

section 151 of the Code of Civil Procedure to stay all further proceedings of Other Execution Case No. 14 of 2015 pending disposal of the Title Suit No. 167 of 2021 should not be set aside and/or such other or further order or orders as to this Court may seem fit and proper.

The present opposite party No. 1 as plaintiff filed Other Class Suit No. 177 of 2010 before the Court of Assistant Judge, Ishwargonj, Mymensingh for permanent injunction in respect of the  scheduled  property  impleading  the  present  petitioners. Ultimately, the suit was decreed on compromise on 26.01.2011 and it was declared that the deed of compromise shall be treated as part of the decree. The conditions of compromise is as follows:

“B−f¡oe¡j¡l naÑ¡hm£x

12.    e¡¢mn£ af¢om h¢ZÑa 20 na¡wn i¨¢j h¡c£ fÊ¡ç qC−he Hhw Eq¡−a ¢hh¡c£N−Zl ®L¡el©f c¡h£ c¡h¡ üaÄ cMm l¢qm e¡z
13. Hhw ¢hh¡c£NZ e¡¢mn£ i¨¢jl f¢lh−aÑ h¡c£l ¢eLV qC−a 65,000/-(fuo¢–) q¡S¡l V¡L¡ fË¡ç qC−hez
14.   Aœ B−f¡oe¡j¡ j§−m ¢X¢œ² qC−he Hhw Eš² B−f¡oe¡j¡ ¢Xœ²£l HL¡wn h¢mu¡ NZÉ qC−hez
15.   B−f¡oe¡j¡l hÉui¡l ¢eS ¢eS frNZ hqe L¢l−hez”

In the decree schedule of the property has been described as

follows:

“af¢Rm

−Sm¡ juje¢pw−ql, Ef−Sm¡- DnÄlN”, ®j±S¡- hs X¡‰¤l£ j−dÉx-

fËS¡C Mw ew  −q¡¢ôw Mw ew  c¡N ew −nËZ£     f¢lj¡e

239   661   556  L¡¾c¡  Aœ c¡−Nl f§h¡Ñw−n 33 h¡−c

avm¡N  c¢rZ  f¢ÕQj  ®L¡−Z  20

na¡wn c¡h£l i¨¢j h−Vz −Q±ý¢Ÿx-Eš−l- L¡−nj, c¢r−Z- p¡−cL, f§−hÑ- C¢âp Bm£, f¢ÕQ−j- Bx l¢ncz”

Thereafter, the plaintiff of the said suit filed an execution case being Other Class Execution Case No. 14 of 2015 claiming himself as decree-holder and in the said execution case he filed an application under Order XXI, rule 32 (1) and (5) read with section 151 of the Code of Civil Procedure sought for an order directing the defendant-opposite party to vacate 14  decimals of land in

favour  of  the  plaintiff-decree-holder  together  with  an  order confining the defendant-opposite party into civil jail and to order for appropriate compensation against the said defendants-opposite parties. The defendant-opposite party Nos. 1 and 2 appeared in the execution proceeding and filed written objection stating that there are more properties other than the decreed .20 decimals of land in the schedule of the suit as well as of the decree and the defendants from their ‘Ascendant’ got .14 decimals of land and are enjoying

the said property by erecting homestead and planting trees; the said ancestral .14 decimals of land was duly recorded in the B.R.S. Khatian No. 309 in the name of their father.

Upon believing the claim of plaintiff-decree-holder that he has been dispossessed by the defendants from .14 decimals of land, learned Judge of the Executing Court by his order No. 16 dated 20.03.2016 allowed the application filed by the plaintiff- decree-holder directing the defendant-opposite parties to vacate

the possession of the case land (regarding .14 decimals of land) with a direction that in default the plaintiff-petitioner may get possession  through  the  Court  like  a  decree  for  recovery  of possession and also directing to confining the opposite parties in civil  imprisonment  for  3(three)  months  with  a  penal  fine  of Tk.30,000/- each. Against which the defendant-opposite parties filed Miscellaneous Appeal No. 27 of 2016 before the District

Judge, but the said miscellaneous appeal was dismissed for default on 13.09.2017. The defendant-appellants filed Miscellaneous Case No.  10  of  2018  for  setting  aside  the  dismissal  order  dated 13.09.2017 and to restore the miscellaneous appeal in its original file and number. The appellate Court below by its order dated 15.01.2019 dismissed the miscellaneous case and on being further aggrieved by the said dismissal order, the defendant-appellants filed First Miscellaneous Appeal No. 213 of 2019 before the High Court Division and after hearing a Single Bench of this Division by its judgment and order dated 01.03.2021 dismissed the appeal.

Having been aggrieved by the judgment and order of the High  Court  Division  dated  01.03.2021,  the  defendant-opposite parties filed Civil Petition for Leave to Appeal No. 1672 of 2023, which is pending before the Apex Court.

The defendant-petitioner also filed Title Suit No. 167 of 2021  before  the  Court  of  Assistant  Judge,  Ishwarganj, Mymensingh sought for a declaration of title in the scheduled property  measuring  an  area  of  .47  decimals  and  for  further declaration that the defendant (plaintiff of Other Class Suit No. 77 of 2010) did not acquire any right, title in the scheduled property of said .47 decimals on the strength of the decree of Title Suit No.177 of 2010.

After  dismissal  of  the  first  miscellaneous  appeal  by  the High Court Division, the plaintiff of Other Class Suit No. 177 of 2010, took initiative to proceed with the Execution Case No. 14 of 2015.  In  the  said  case,  the  defendant-opposite  party-petitioner filed an application under Order XXI, rule 29 read with section 151 of the Code of Civil Procedure praying for stay of all further proceedings of the decree execution case pending disposal of Title Suit No. 167 of 2021 and the executing Court after hearing by its order dated 02.11.2021 rejected the application holding that the attempt of the defendant to stay the execution case is nothing but to frustrate the decree and as such, the said application is not maintainable.

Having been aggrieved by the order of the Executing Court dated 02.11.2021 passed in Other Execution Case No. 14 of 2015, the defendant-opposite parties preferred Civil Revision No. 41 of 2021  before  District  Judge,  Mymensingh  and  learned  District Judge  by  her  order  dated  07.11.2022  rejected  the  revision affirming the order of the Executing Court.

On being aggrieved by and dissatisfied with the aforesaid order  of  learned  District  Judge,  Mymensingh,  the  defendants opposite  party-petitioners  filed  this  revisional  application  and obtained the Rule together with an ad-interim order of stay of all further  proceedings  of  Other  Execution  Case  No.  14  of  2015 pending  before  the  Senior  Assistant  Judge,  Ishwarganj, Mymensingh.

Ms.  Nahid  Yesmin,  learned  Advocate  for  the  petitioner submits that the petitioner filed Civil Petition for Leave to Appeal No.  1672  of  2023  against  the  judgment  and  order  dated 01.03.2021 passed by the High Court Division in FMA No.213 of 2019 arising out of an order purportedly passed under Order XXI, rule 32(1) read with section 151 of the Code of Civil Procedure by the  Executing  Court  in  Other  Execution  Case  No.14  of  2015

directing the defendants-opposite party-petitioners to vacate .14 decimals of land and handed over the possession to the plaintiff- petitioner-opposite  party  together  with  an  order  of  civil

confinement for 3(three) months and penalty of Tk.30,000/-. She continues  to  submit  that  the  said  C.P.  is  pending  before  the Hon’ble Appellate Division subject matter of which is whether the direction dated 20.03.2016 of the Executing Court directing to execute the compromise decree dated 26.01.2011 of the Other Class Suit No.177 of 2010 which is at all executable or not is to be decided by the Apex Court. Apart from that the present petitioner filed Title Suit No. 167 of 2021 before the Senior Assistant Judge, Ishwarganj,  Mymensingh  for  declaration  of  title  regarding  .47 decimals of land out of .67 decimals of plot No.556 appertaining to S.A. khatian No.239 and 236 and the present opposite party is

claiming .14  decimals of land out of the said .47 decimals. She next submits that the decreed .20 decimals of land in compromise decree of Other Class Suit No.177 of 2010 is altogether different from the .47 decimals of land. Thus the opposite party’s claimed .14 decimals through the application under Order XXI, rule 32(1) read with section 151 of the Code of Civil Procedure is very much the subject matter of Title Suit No.167 of 2021, thus, the

execution proceedings should be stayed during pendency of the said suit.

She lastly submits that the present petitioner is an old man of about 80 years, but he was not properly advised or assisted by his engaged Advocate of the lower Court and now he went before the Apex Court as the last resort against a flagrant injustice and in view  of  the  above,  she  prayed  for  making  the  Rule  absolute, staying the execution case pending before the Senior Assistant Judge, Ishwarganj, Mymensingh.

On  the  other  hand,  Mr.  Shahed  Ahmed  Sadi,  learned Advocate for the opposite party submits that the plaintiff should not be deprived from the fruit of his decree obtained in the year 2011 on the basis of a solenama.  He further submits that the defendant  being  embolden  with  some  local  unruly  persons forcibly  dispossessed  the  plaintiff-opposite  party  from  .14

decimals of land and in spite of repeated demand to restore the possession in favour of the plaintiff-opposite party, the defendant- petitioner did not pay any heed and as such the plaintiff-petitioner- opposite party was constrained to file an application under Order

XXI,  rule  32  (1)  read  with  section  151  of  the  Code  of  Civil Procedure and learned Judge of the Executing Court by his order dated  20.03.2016  allowed  the  said  application  directing  the defendant- opposite party-petitioner to hand over the possession of

.14 decimals of land in favour of the present opposite party together with an order confirming the present petitioner along with others in civil imprisonment for 3(three) months and the said order has  been  upheld  up  to  the  High  Court  Division,  despite  the defendant- petitioner continuously tried to frustrate the decree of Other Class Suit No.177 of 2010 and thus, the Executing Court as well  as  the  District  Judge  justly  and  legally  rejected  the application for stay.

Heard learned Advocates of both the parties, perused the revisional application together with the annexures and the counter affidavit  filed  on  behalf  of  the  opposite  party;  having  gone through the provisions of law.

It appears that the present opposite party as plaintiff filed a suit being Other Class Suit No. 177 of 2010 before the Senior Assistant Judge, Ishwarganj, Mymensingh impeading the present petitioner as defendant for permanent injunction over a piece of land measuring .20 decimals out of the schedule to the plaint.

In the schedule, it is stated that the claim of plaintiff is regarding 20 decimals of land, other than .33 decimals of land in the eastern side of the plot. In the schedule, the boundary of the suit  property  has  been  described,  wherein  it  is  stated  that  the property  of  defendant  No.1,  Abdur  Rashid  is  situated  in  the Western side.

Upon such schedule, the suit was decreed on compromise between  both  plaintiff  and  defendants  and  in  the  decree  it  is declared that the deed of compromise shall be treated as part of

the decree; the condition of compromise has been quoted herein above, among others, the first one is, (L) e¡¢mn£ af¢nm h¢ZÑa 20 na¡wn i¨¢j h¡c£ fÊ¡ç qC−he Hhw Eq¡−a ¢hh¡c£N−Zl ®L¡el©f c¡h£ c¡h¡ üaÄ cMm l¢qm e¡z (M) Hhw ¢hh¡c£NZ e¡¢mn£ i¨¢jl f¢lh−aÑ h¡c£l ¢eLV qC−a 65,000/-(fuo¢–) q¡S¡l V¡L¡ fË¡ç qC−hez

In  the  compromise  application  it  is  stated  that  at  the instance of local elites and relatives, the plaintiff and defendants agreed to settle the dispute to save themselves from harassment and financial loss. No where in the compromise it is asserted (through terms and conditions) that in default of any condition the plaintiff or defendant i.e. parties to the compromise decree may take recourse of execution. Moreover, it is not the case of present petitioner or opposite party that the said compromise decree was not  executed  or  dishonoured.  Even  it  is  not  the  case  of  the plaintiff-petitioner-opposite party that he did not get 20 decimals of land according to the compromise decree dated 26.01.2011, vice-versa the defendant-opposite party-petitioner did not claim that he did not get Tk.  65,000/-, his portion  as  settled in  the compromise decree, and as such, nothing was left to be executed.

From the averment of plaintiff-petitioner-opposite party, it appears that he claimed that he has been dispossessed from .14 decimals of land, although the said claim has been denied by the defendant-opposite  party-petitioner  asserting  that  the  aforesaid

.14 decimals of land was not part of the compromise decree and it is situated outside of the decreed .20 decimals of land and is his ancestral property, the .14 decimals of land was never possessed by the plaintiff.

As  this  Court  found  herein  before  from  the  terms  and condition of the compromise decree dated 26.01.2011 that there was nothing left to be executed. Apart from that if the plaintiff- petitioner-opposite party has been dispossessed as alleged by him. He may take proper recourse as provided under the law by filing separate suit. The application under Order XXI, rule 32 seems to be a misconceived one, because, the suit for permanent injunction has  been  turned  into  a  title  suit  simplicitor  by  consent  or compromise of both the parties and now the parties are barred by ‘Estoppel’  in  claiming  that  the  suit  is  one  for  permanent injunction,  because,  in  the  condition  of  compromise  no restrainment has been imposed upon either of the parties, and the suit and the decree which has been drawn upon it, has already been changed it’s character to a suit or decree for declaration of title and through the consent of both the parties the title of the plaintiff over .20 decimals of land has been declared against a consideration of Tk.65,000/-. In the said decree neither of the

parties has been injuncted permanently or temporarily, thus, the application under Order XXI, rule 32(1) is a misconceived one. Apart from that in a proceeding under Order XXI, rule 32, there is hardly any scope to recover the khas possession as alleged by the plaintiff-petitioner-opposite party.

However, those question are to be finally adjudicated before the Apex Court in Civil Petition for Leave to Appeal No.1672 of 2023, and since the case before this Court is whether the execution proceedings should be stayed or not.

In the premise above, this Court is of the view that the execution proceedings should be stayed till disposal of the Civil Petition for Leave to Appeal No. 1672 of 2023 pending before the Apex Court.

Accordingly, all further proceedings of Decree Execution Case No. 14 of 2015 of the Court of Senior Assistant Judge, Ishwargonj, Mymensingh is hereby stayed till disposal of the Civil Petition for Leave to Appeal No. 1672 of 2023, pending before the Hon’ble Appellate Division of the Supreme Court of Bangladesh.

With  the  above  observation  and  direction  the  Rule  is

disposed of.

No order as to cost.

Communicate the judgment and order at once.

Obaidul Hasan/B.O.