Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: MUHAMMAD RAMJAN SAWDAGAR VS Respondent: A. H. M. FAZLUL HAQ
P L D 1963 Dacca 987
P L D 1963 Dacca 987
Before Chowdhury, C. J. and M. R. Khan, J
MUHAMMAD RAMJAN SAWDAGAR‑---Petitioner
versus
A. H. M. FAZLUL HAQ---‑Opposite‑Party
Civil Revision No. 1061 of 1959, decided on 18th August 1361. ,
(a) High Court Civil Rules and Orders (East Pakistan), r. 466 (2)‑Courts order passed in absence of parties and not conveyed to them‑Subsequent order made on basis of that order, held, void and illegal.
(b) Civil Procedure Code (V of 1908), S. 144‑Time allowed to do an act on certain date includes that whole day.
D. L. Rahman for Petitioner.
S. R. Pal, Amicus Curiae for the Opposite Party.
JUDGMENT
CHOWDHURY, C. J.‑This Rule under section 115 of the Code of Civil Procedure is directed against the order of the First Subordinate Judge, Chittagong, in Money Execution Case No. 90 of 1954 allowing an application under Article 181 of the Limitation Act for proceeding with the Money Execution Case No. 90 of 1954.
2. The decree‑holder, the opposite‑party in this Rule obtained a decree for a sum of Rs. 10,000 on 26th December 1953. He started execution case, being Execution Case No. 64 of 1954, was dismissed for default on 30th July 1954. Subse quently, he started another execution case being Execution Case No. 90 of 1954 for recovery of the decretal amount by attachment and sale of the properties appended to the schedule of the execution petition, The properties were attached, but there was a claim case under Order XX1, rule 58 of the Code, 'and that claim case was allowed on contest by judgment dated 4th March 1955. The decree‑holder moved the High Court against the order dated 4th March 1955, but without success. Thereafter he instituted a suit under Order XXI, rule 63 of the Code for declaration that the properties released from attachment were liable to be attached. He obtained an ex parte decree on 24th July 1958.
3. In the meantime, on the 8th March 1955, that is, four days after the order in the claim case under Order XXI, rule 58 of the Code on 4th March 1955, there was an order in the Execution Case No. 90 of 1954 directing the decree‑holder to take steps by 12th March 1955, as the stay order after the disposal of the claim case was dissolved. No step having been taken the execution case was dismissed for default on 12th March 1955.
4. On 2nd October 1958, after obtaining a decree in the suit under Order XXI, rule 63 of the Code of Civil Procedure the decree‑holder presented an application under section 151 of the Code of Civil Procedure for restoration of the ExecutioA Case No. 90 of 1954 dismissed for default by setting aside the order of dismissal. That application was, however allowed, but in revision before the High Court the order of dismissal was set aside and the application under section 151 of the Code was turned down.
5. Now the decree‑holder has come with the present application under Article 181 of the Limitation Act for allowing the decree‑holder to continue the Execution Case No. 90 of 954 t waiving the dismissal order passed on 12th March 1955.
6. It was contended before the learned Subordinate Judge that the application is one under Article 182 of the Limitation Act and not one under Article 181 of the Limitation Act, and the application not having been filed within three years from the date of disposal of the previous application it was barred by limitation. On the other hand, it was contended on behalf of the decree‑holder that it was not a fresh application for execution but an application for continuation of the previous execution, and, as such, Article 181 of the Act was applicable, the period of limitation is three years from the date when the right to apply accrue for an application for which no period of limitation is provided in the Schedule or by section 48 of the Code of Civil Procedure. According to the contention of the decree‑holder his right to apply accrues, in this particular case, from the date of the decree, that is 24th July 1958, he obtained in the suit filed by him under Order XXI, rule 63 of the Code of Civil Procedure. The learned Subordinate Judge relying on the decision in the case of Manyam Surayya v. Sunkavelli Yenkataratnam (I L R 47 Mad. 176) and in the case of Chhattar Singh and another v. Kamal Singh and others (I L R 49 All. 276) accepted the contention on behalf of the decree holder and observed:
"From these authorities it is clear that when an execution application is brought and properties are attached in execution of that application, if any obstacle is placed in the way of the properties being sold and assets realised, for the purpose of meeting the decree‑debt by the action of a third party putting in a claim petition and it becomes necessary for the decree holder either to dispute the claim proceedings or to bring a suit to have the matter decided whether properties are those of the judgment‑debtor, his subsequent application to sell those properties is not governed by Article 182 but is in the nature of revival of the original execution application and Article 181 will apply."
This principle of law enunciated on the basis of the authorities relied on by the learned Subordinate Judge was to be disting uished by the fact that the execution case in the present case was dismissed for default on 12th March 1955, and, therefore, it was submitted that the present application not having been filed within three years of that date the application is tune‑barred. The learned Subordinate Judge held that when the claim case was allowed the decree‑holder proceeded against the attached property in suit under Order XXI, rule 63 of the Code of Civil Procedure, and when he got decree in that suit on 17th February 1958, his cause of action arose on that date. It was further contended by the learned Subordinate JuJge that when the High Court once adjudicated the matter in a way the matter could not be revived. The learned Subordinate Judge observed:
"But although in substance the decree‑holder applied for restoration of the execution case previously that application was one under section 151, C. P. C., and the High Court found that section 151, C. P. C. had no application to restore the execution case once dismissed for default and barred by limitation."
7. In this view of the matter the learned Subordinate Judge allowed the application for proceeding with the previous execution case is governed by Article 181 of the Limitation Act, and, therefore, when it has been presented within 3 years of the date of the decree of the suit under Order XXI, rule 63 of the Code of Civil Procedure the Execution Case No. 90 of 1954 must be revived and "execution will proceed against the properties attached.
8. Against this decision of the learned Subordinate Judge the present Rule has been obtained by the judgment‑debtor.
9. Mr. D. L. Rahman, the learned Advocate for the petitioner judgment‑debtor, reiterated before us the arguments advanced before the learned Subordinate Judge.
10. Mr. S. R. Pal, the learned Advocate who appears in this Rule as an amicus curiae and who happened to appear in this very case on behalf of the decree holder at some earlier stage, challenges the very order of dismissal for default on 12th March 1955, as well as the order dated 8th March 1955, directing the decree‑holder to take further steps as void ab initio and without jurisdiction, and, therefore, Mr. Pal contends that the original Execution Case No. 90 of 1954 is still pending, and the present application is nothing but a prayer for proceeding with the said Money Execution Case No. 90 of 1954. His contentions are (1) that the order dated 8th March 1956, passed by the executing Court directing the decree‑holder to take further steps was behind the back of the decree‑holder, and was in violation of Rule 466 (2) of the High Court Civil Rules and Orders which provides:
"(3) Orders directing anything to be done by parties or their Pleaders shall be signed then and there by the parties or their Pleaders."
The note (1) thereto provides:
"Note (1).‑While every endeavour should be made to get the signature of the Pleaders concerned to important orders, their attention is drawn to the fact that it is not the duty of the officers of the Court to call upon the Pleaders to sign the orders issued, or to inform them of the nature of the orders passed. It is for the Pleaders to be present at the proceedings to make themselves acquainted with the order passed."
This Rule contemplates that if on the date fixed any important order is passed this order is to be signed by the Pleader an endeavour should be made to get the signature of the Pleader. But if an order is passed on an off date, in a case not. Appearing in the cause list or on a date not fixed for a case, it is still mot incumbent on the Court to see that the order is communicated. In a decision of this Court in the case of Central Bank of India Ltd. v. Ehram Jute Baling (P L R 1962 Dacca 201) decided on 3rd March 1961, by this Court it has been pointed out that rules in Civil Rules and Orders rather prescribe how to give effect to the provisions of the Code of Civil Procedure, and they do not contravene any of the provisions of the Code of Civil Procedure.
11. Further, it appears that on 8th March 1955, the Court not only passed an order behind the back of the parties to take step by 12th March 1955, but also before the expiry of the date, namely, 12th March 1955, the learned Subordinate Judge dismissed the execution case within the time allowed. When time is allowed up to a certain date for performance of an act the whole of that date will be available to the person to whom the time is allowed for compliance with the order [vide Afajuddin Mollah and others v. Abdur Rahman Sk. and another (P L D 1959 Dacca 454)]. In the present case before the expiry of the date, that is, on the very date the learned Subordinate Judge passed the order dismissing the execution case. Therefore, the order directing to take steps as well as the order dismissing the execution case for default is without jurisdiction and void ab initio.
12. Mr. D. L. Rahman, the learned Advocate for the judgment‑debtor contends that whatever may be the nature of the order, when that order has been confirmed by the High Court in the revision under section 155 of the Code of Civil Procedure it operates as res judicata and the decree‑holder cannot agitate this point in a subsequent proceeding. It is true that after obtaining a decree in suit under Order XXI, rule 63 of the Code of Civil Procedure the decree‑holder opposite‑party filed an application on 2nd October 1958, under section 151 of the Code of Civil Procedure for setting aside the order dismissing the execution case for default on 12th March 1955, and though that application was followed by the learned Judge, and vacated the order of dismissal of the execution case for default, the judgment debtor, the present petitioner, got it set aside by the High Court in C. R. No. 742 of 1959. In that case, it was contended before the High Court that when the decree‑holder found that his application for fresh execution was time‑barred after the dismissal of the Execution Case No. 90 of 1954 on the 12th March 1955, he moved the executing Court under section 151 of the Code of Civil Procedure to vacate the order which was passed more than three years before, and in the circumstances the learned Judge was not justified in exercising his inherent jurisdiction under section 151 of the Code of Civil Procedure as the decree‑holder had other express remedies open to him. In view of this contention, High Court held that after taking different steps in execution on different dates the decree‑holder could not be heard to say that he did not know or he did not take upon himself the trouble to ascertain as to what happened to the execution case for such a large number of years, that the decree‑holder had express remedy, and could file another execution case within three years, and that when he has not done so, he should not have been allowed to invoke the Court's jurisdiction under section 151 of the Code of Civil Procedure. We do not under stand how this decision operates as res judicata on the point raised by Mr. Pal in this case, namely, the order dated 8th March 1955 passed by the executing Court directing the decree holder to take steps is behind the back of the parties and, therefore, without jurisdiction and void, and that the dismissal of the execution case within the time allowed to take necessary steps is also without jurisdiction and, as such, void; consequently, the execution case, being Execution Case No. 90 of 1954 remains in the eye of law pending, the order of dismissal for default being void and without jurisdiction did not affect the execution case.
13. We are unable to accept the contention of Mr. D.L. Rahman, on behalf of the judgment‑debtor. Mr. Rahman, in support of his contention refers to the decision of Agarwala, C.J. in the case of Anis Imam and another v. Daughter of Jamunabi, wife of Banarasi Khatri and others (A I R 1949 Pat. 117 (119)). There the execution case was dismissed on the ground that the decree‑holder sought to execute the decree which was not in existence having been superseded by the decree of the appellate Court. As the decree of the trial Court was modified in appeal though that modi fication was incorporated by amendment in the application for execution after the appellate Court decree, the application was rejected. When the said decree‑holder filed another application for execution of the appellate Court decree it was held that it was barred by res judicata. We do not like to express any opinion as to the merit of that case, but the fact of that case is distinguishable from the fact of the present case, in that the order passed in the first execution in that case might be wrong but not void, whereas the order passed in the present case is null and void and without jurisdiction, and did not affect the pending execution case.
14. The result, therefore, is that this Rule is discharged. As no one appears on behalf of the decree‑holder opposite‑party there will be no order as to costs.
15. M. R. KHAN, J.‑---I agree with my Lord the Chief Justice that this application in revision should be dismissed, but I would like to add a few words. The claim case under Order XXI, rule 58 of the Code of Civil Procedure was allowed on 4th March 1955. After the disposal of the claim case, no order was passed on that date in the Money Execution Case No. 90 of 1954 asking the decree‑holder to take steps in that execution case. It was only on an off‑date, that is on 8th March 1955, that an order was made by the Court behind the back of the parties asking the decree‑holder to take steps in the execution case by 12th March 1955. It is significant that the order, dated 8th March 1955, was not communicated to the decree‑holder or his lawyer, although it was an important order and made on an off‑date. Rule 466 (2) of the High Court Civil Rules and Orders enjoins that such an order should be got signed by the parties lawyers. But this was not done. In pursuance of the order, dated 8th March 1955, the record was placed before the executing Court on 12th March 1955, on which date that Court eventually dismissed the execution c‑se for default. The question is whether there was really any default on the part of the decree‑holder or 12th March 1955. The order, dated 8th March 1955, being an order made behind the; back of the decree‑holder, and the same not having been communicated to him following Civil Rule 466 (2) or the principles underlying that rule, no laches could be attributed to the decree‑holder on 12th March 1955. Default on the part of the decree‑holder being the very basis of the order, dated 12th March 1955, and as there was no default on his part, the said order dismissing the execution case was without jurisdiction, and as such, null and void. Consequently, the execution case, in law, is still alive. It is an accepted principle of law that rights of parties shall not be adjudicated without giving them an opportunity of being heard. Such adjudication if any offends against the principles of natural justice. Thus the order dismissing the execution case was not only without jurisdiction, but was also against the principles of natural justice.
S. B./K. B. A.
Rule discharged.