Wednesday, January 24, 2018 | ePaper
The Executing Court cannot go beyond the decree
Surendra Kumar Sinha J
Nazmun Ara Sultana J
Syed Mahmud Hossain J
Hasan Foez Siddique J
Sheikh Sekander Ali and others .......Petitioner
Agrani Bank Limited and others ... ........ Respondents
April 13th, 2015.
Code of Civil Procedure (v of 1908)
Decree-The executing court cannot go beyond the decree. The decree was passed against the writ-respondent also and therefore, the executing court had no jurisdiction to strike out their names from the execution case. .. .... (5)
Abdul Motin Khashru, Senior Advocate with SN Goswami, instructed by Mahbubur Rahman, on-Record-For the Petitioners.
Nahid Sultana, Advocate-on-Record-For the Respondents.
Nazmun Ara Sultana J: This Civil Petition for Leave to Appeal is directed against the judgment and order dated 15-6-2014 passed by the High Court Division in Writ Petition No. 560 of 2014 making the Rule absolute.
2. The relevant facts necessary for disposal of this civil petition for leave to appeal, in short, are that the writ-respondent No. 6 M/s Commissioner Apparels Limited had availed credit facilities from the writ-petitioner-Agrani Bank Limited, but ultimately failed to repay the said loan amount as per stipulations and consequently the writ-petitioner Bank instituted Artha Rin Suit No. 4 of 2008 before the Artha Rin Adalat No.1, Dhaka for realization of outstanding loan amount of Taka 2,11,36,193.25. In that suit the present writ-respondent Nos. 2 to 5 also were impleaded as defendant Nos. 7 to 10 and the decree was passed against the also. The defendant Nos. 7 to 10 though prayed before the Artha Rin Adalat for striking out their names from the plaint, but the Adalat, on consideration of the facts and circumstances, rejected those prayers holding that they were necessary parties and were also responsible for repayment of loan. However, the said Artha Rin Suit was decreed on contest against the defendant Nos. 2 and 3 and defendant Nos. 7 and 8 and ex-parte against the rest.
Since the judgment-debtors did not pay the decreetal amount the decree holder bank filed Artha Execution Case No. 66 of 2012 for realization of the decreetal amount.
In that execution case the present writ-respondent Nos. 2 to 5 filed applications for striking out their names from the execution case and the executing court by the orders dated 15-11-2012 and 24-7-2013 allowed those applications striking out the names of those respondents from that execution case.
3. Being aggrieved by these orders the decree holder Agrani Bank preferred the above mentioned Writ Petition No. 560 of 2014 and obtained Rule.
A Division Bench of the High Court Division, after hearing both the parties, made that Rule absolute by the impugned judgment and order.
The High Court Division set aside the impugned orders striking out the names of the writ-respondent Nos. 2 to 5 from the execution case holding those orders illegal.
The High Court Division made observations to the effect that where the trial court, on consideration of the facts and circumstances and legal aspects found these writ-respondent Nos. 2 to 5 necessary parties in that Artha Rin Suit and therefore, rejected their prayer for striking out their names from the plaint and also decreed the suit against them and the executing court committed illegality and acted beyond its jurisdiction in striking out the names of these Writ-respondent Nos. 2 to 5 from the execution case.
4. Mr Abdul Motin Khashru, the learned Senior Advocate appearing for the leave-petitioners could not assail the above observations and findings of the High Court Division.
5. The above observation and findings, of the High Court Division is quite correct.
The executing court cannot go beyond the decree. The decree was passed against the writ-respondent Nos. 2 to 5 also and, therefore, the executing court had no jurisdiction to strike out their names from the execution case.
Evidently, there is no merit in this Civil Petition for Leave to Appeal and hence it is dismissed.