SHAH NEWAZ EBNE MOSTAQUE Vs. SHAH ALAM

JUDGEMENT

(1.) The instant civil petitioner for leave to appeal by judgment-debtor-petitioners arises from the judgment passed by a Single Judge of the High Court Division in Civil Revision No. 2849 of 1992 making the Rule absolute and setting aside the Order No. 24 dated 26-10-1992 passed by the Senior Assistant Judge, Sadar Cox's Bazar in other Execution Case No. 70 of 1964 allowing an application under section 15 1 of the Code of Civil Procedure and striking off the execution case as barred by limitation and directing restoration of possession to the judgment debtors-petitioners in the suit property.

(2.) The facts are that the plaintiff respondents brought Title Suit No. 173 of 1961 in the Court of the then Munsif, Cox's Bazar against the petitioners for declaration of his title to the suit land and for khas possession after demolition of the structures standing thereon. The trial Court decreed the suit of the plaintiff-respondent by his judgment and decree dated 14-1-1963. Against the aforesaid judgment and decree the defendant petitioners preferred Title Appeal No. 86 of 1963 in the Court of District Judge, Chittagong. The appeal was heard by the Subordinate Judge, 3rd Court, Chittagong, who by his judgment and decree dated 10-2-1964 dismissed the appeal and affirmed the judgment and decree of the trial Court. After disposal of the aforesaid title appeal the plaintiff-respondent put the decree to execution by starting Execution Case No. 70 of 1964 in the Court of Senior Assistant Judge, Cox's Bazar. On the other hand, the defendant-judgment-debtor petitioners preferred Second Appeal No. 583 of 1964 before the then East Pakistan High Court and the High Court was pleased to stay all further proceedings of other Execution Case No. 70 of 1964 on 4-12-1964 till disposal of the Second Appeal. The Second Appeal No. 583 of 1964 was dismissed for default on 4-8-1978. On the death of the plaintiff decree-holder and judgment debtor defendant Nos. 1-3, their legal heirs, were duly substituted in Execution Case No. 70 of 1992. The heirs of decree-holder filed an application for proceeding with the execution case and the Assistant Judge, Cox's Bazar allowed the prayer by his order dated 27-5-1992 and fixed 3-6-1992 for taking necessary steps in the case. By an order dated 3-6-1992 the Assistant Judge directed the decree-holder to deposit Rs 300 as fee of the Nazir and Advocate Commissioner for local inspection of the suit land and ascertain if there were huts standing on the suit land. The Advocate Commissioner was appointed who inspected the suit land and submitted his report. The Nazir of the court delivered possession of the land to the decree-holder plaintiff on 9-6-1992. The judgment debtor petitioners thereafter filed written objection against the report of the Nazir on 10-6-1992 and 29-6-1992. The application filed on 29-6-1992 was under section 151 of the Code of Civil Procedure stating, inter alia, that the starting of execution case on 20-5-1992 was not intimated to the judgment debtors or their Advocate and that the schedule of the decree was vague and indefinite and that the execution case in question was barred by limitation and their possession of the suit land be restored to them.

(3.) The decree holders contested the application of the judgment debtors stating, inter alia, that the judgment debtors and their engaged lawyer had knowledge of the execution case right from 20-5-1992 and the notices were duly served upon the substituted heirs of the original judgment debtors and that the execution proceeding was not barred by limitation. The learned Senior Assistant Judge, Cox's Bazar heard both sides on 26-101992 and allowed the application of the judgment debtors and directed restoration of possession of the suit land in favour of the judgment debtors petitioners upon a finding that the execution proceeding was barred by limitation.