TAHMINA KHATUN Vs. BEGUM NURUN NAHAR

JUDGEMENT

(1.) Judgment-debtor (defendant No.4) is the petitioner. She is challenging an order of the High Court Division dated 3 September 1986 setting aside an order of the Executing Court, namely the Subordinate Judge, who had directed the appointment of an Advocate Commissioner to ascertain the value of a part of her building for payment of compensation to her by the decree-holders who were given a decree for khas possession over a land including this part of the building. Respondents obtained a preliminary decree in her partition suit (O.C. Suit No. 52 of 1972) for a saham of .13 decimals of land out of a total area of .31 decimals. The preliminary decree was made final on 9.8.84 upon an Advocate Commissioner's report which was made part of the decree. By that final decree the respondents were allotted the saham of .13 decimals and it was directed that they would be given khas possession of the land including a part of the judgment-debtor building. When the decree was sought to be put into execution in O.C. Execution Case No. 5 of 1984, the judgment-debtor objected to the execution contending that the value of the part of her building should be ascertained through an Advocate Commissioner for the purpose of compensation to be paid by the decree-holders. The Executing Court allowed her prayer and appointed an Advocate Commissioner; but in revision the learned Single Judge of the High Court Division (Civil Revision No.229 of 1986, Rangpur Bench), set aside the order of the Executing Court and directed that the Execution Proceeding should proceed. This order of the High Court Division is now under challenge before us.

(2.) Mr. Abdul Malek learned Advocate for the petitioner, first of all tried to show us that the judgment-debtor's petition for appointment of an Advocate Commissioner by the Executing Court is maintainable under section 151 C.P.C. The learned Counsel has tried to argue that as there is no other provision of law for ascertainment of value of a part of the building which fell to the decree-holders' share, provisions of section 151 . are applicable. We do not think that this contention is tenable. For, remedy sought in the application goes into the merit of the decree itself in which rights and liabilities of the parties have been conclusively determined. Under this decree, decree-holders are not liable to pay any compensation for demolition of a part of the building which fell to their saham. Function of the Executing Court is strictly limited to execution of the decree as it is. It appears that after the preliminary decree was passed an Advocate Commissioner appointed by the Court made local investigation but the judgment-debtor did not co-operate with him, that the Advocate Commissioner gave the plaintiffs a saham of .13 decimals including a part of the judgment-debtor's building and a latrine since these structures fell within the plaintiffs' saham of .13 decimals out of which .4 decimals of land was found in possession of the defendant-judgment-debtor. The Advocate Commissioner submitted his report which was accepted and made part of the final decree without any objection. In the circumstances, the Executing Court got no authority to go beyond the decree and award compensation to the judgment-debtor who is however at liberty to remove her structure taking permission of the Executing Court.

(3.) The learned Counsel has tried to invoke section 51 of the Transfer of Property Act and contended that as a transferee the judgment-debtor is entitled to compensation for demolition of her building constructed bonafide in a land which, subsequent to her transfer, became property of another person. Facts established in the suit however do not appear to support the judgment-debtor's claim as to compensation as a bonafide transferee. Out of the total area of .31 decimals of the suit land, which had belonged to defendant No.5, plaintiffs first purchased .13 decimals and after them defendants Nos. 1-3 purchased .12 decimals leaving only .06 decimals which was purchased, last of all, by defendant No.4 the judgment-debtor, Now it is found that he is in unauthorised possession of .4 decimals out of the plaintiffs' .13 decimals and it is this part of land under unauthorised possession of .4 decimals on which the disputed constructions were made. The construction is, therefore, not bonafide. In any case, to ascertain value of the part of the judgment-debtor's building so as to compensate him at plaintiffs' cost falls outside the power of the Executing Court and as such the order appointing an Advocate Commissioner has been rightly set aside by the High Court Division. We find nothing to interfere.