ABDUL HAKIM Vs. GOLEDA BEGUM

JUDGEMENT

(1.) This is an appeal by special leave at the instance of the plaintiff-decree holder of a partition suit. A pertinent question of law, which is also of considerable public importance, is involved herein. It is whether an execution proceeding can be reopened on an application under section 47 of the Civil Procedure Code long after the decree has been executed and possession of the land has been delivered to the decree-holder.

(2.) This arises from partition suit No. 57 of 1962 filed by the appellant in the 1st Court of Munsif, Mymensingh, against the respondents and many other defendants. Details of the suit which proceeded in a zigzag way need not be given. The suit was decreed in a preliminary form on 16 February 1974 by the lower Appellate Court upon setting aside the judgment of the trial Court dated 23 December, 1968. Final decree was passed on 15 July, 1976, whereupon the Execution Case No. 6 of 1976 was filed which was allowed and possession of the plaintiff's share was delivered through Court on 2 June, 1977. The respondents (Judgment-debtors) filed Misc. Case No. 51 of 1977 under section 47 C.P.C. on 26 December 1977 raising objection to the execution already completed taking the ground that the decree was a nullity as five defendants, judgment-debtors, had died "before the final decree and the execution proceeding" but their legal representatives were not brought on record. The application was contested by the decree holder taking the ground that the Executing Court became functus officio after executing the decree and putting him into possession and as such the court got no further jurisdiction to entertain any objection as to execution, discharge or satisfaction of the decree. The Executing Court dismissed the Miscellaneous Case, holding, among other things, that the alleged death of the defendants was not proved by producing any authentic and reliable evidence, such as Death Certificates. The lower Appellate Court, however, allowed the application holding that some defendants died before the decree but their heirs not having been substituted, the decree was a nullity; the learned Single Judge of the High Court Division did not interfere with the lower Appellate Court's order on a re visional application.

(3.) Mr. Rafiqur Rahman, Learned Advocate for the appellant has contended that the learned Single Judge of the High Court Division fell into serious error of Law in allowing the respondents' application under section 47 filed long after the decree was executed, ignoring the established principle of law that the Executing Court becomes functus officio after the decree has been executed. The learned Advocate further contends that the learned Single Judge ignored the express provision of rule 12 of Order XXII, Civil Procedure Code, which say that the provisions as to substitution under rules 3 and 4 are not applicable to a proceeding in execution of a decree or order. Similarly, he has further contended, the learned Single Judge fell into an error of law in holding that a final decree becomes void on the death of either party thereto. The learned Advocate has, in support of his contention, referred to a great number of decisions which will be discussed presently.