High Court Division
(Civil Divisional Jurisdiction)
Nozrul Islam Chowdhury J
Mohammad Ullah J
AR Elahi & Co. & others …………Petitioners
vs
Shahadat Hossain & others ………..
………………….Opposite Parties*
Judgment
January 23rd, 2013.
Code of Civil Procedure (V of 1908)
Section 115(4)
Petitioner is adopting dilatory tactics one after another to cause delay in executing the decree obtained 17 years back adopting unfair measures since long… …. (3)
Abdul Quiyum Chowdhury, Advocate-For the Petitioners.
Md Serajul Islam Bhuiyan, Advocate-For the Opposite-Parties.
Judgment
Nozrul Islam Chowdhury J: Leave was granted under section 115(4) of the Code of Civil Procedure calling upon the opposite-parties to show cause as to why the order dated 16-3-2010 passed by the learned District Judge, Dhaka in Civil Revision No. 63 of 2010 dismissing the same summarily upon affirming the order dated 17-11-2009 passed by the learned Joint District Judge, 6th Court, Dhaka in Title Suit No. 255 of 2008 rejecting an application filed by the petitioner for staying further proceedings of decree Execution Case No.5 of 2001 pending in a different court.
2. Heard Mr Abul Quiyyum Chowdhury, the learned Advocate appearing for the petitioners in support of the leave, perused the petition .We have also heard Mr Md. Serajul Islam Bhuiyan, the learned Advocate appearing for the opposite party Nos.1-3 who has entered appearance upon filing an exhaustive counter affidavit showing that the same order dated 16-3-2010 passed by the learned District Judge was challenged before this court two times earlier and this is for the third time the same order has been challenged in this Revision.
3. On hearing of the learned Advocate and on perusal the materials on record we find it is a fight in between the landlord and tenants and the original suit is for ejectment that was decreed as back as on 31-7-1993 yet the decree could not have been executed because of many tactful devices adopted by the petitioner. The details have been narrated exhaustively by the opposite-party Nos. 1-4 in their counter affidavit. The decree has also been challenged by the petitioners as plaintiffs in Title Suit No. 554 of 2008 which has been pending before the learned Joint District Judge, 6th Court, Dhaka; on the other hand, the said decree obtained long about 19 years back is also pending in an execution case being Execution Case No. 5 of 2001 pending before the learned Assistant Judge, 10th Court, Dhaka. This time the petitioner filed an application in Title Suit No. 554 of 2008 before the learned Joint District Judge, Dhaka praying for stay of further proceedings of Decree Execution Case No.5 of 2010 pending before the 10th Court of Assistant Judge, Dhaka.
The said application having been heard by the Joint District Judge, 6th Court, Dhaka, was rejected by the learned Joint District Judge by assigning reasons which apparently may not be sustainable yet we find that the application for stay of further proceeding of execution case can be knocked down on a different ground namely, mere institution of a suit challenging a decree obtained as back as in the year 1993 cannot be a ground for staying a proceeding arising out of a contested decree obtained 17 years back, moreover, the petitioner has challenged the same order twice before and failed, therefore, it is evident that the petitioner is adopting dilatory tactics one after another to cause delay in executing the decree obtained 17 years back adopting unfair measures since long.
We have also noticed that in a previous judgment passed by this court a cost of Taka 5000 was imposed on the petitioner because of his conduct noticed by this court in previous proceeding. This revisional application appears to us a devise to deprive the opposite-parties from the fruits of litigation.
This sort of practice should be discouraged by all means, therefore, having found no merit in the revision the same is discharged but it should also be attached with examplary costs of Taka 25,000 as condition precedent. Consequently order of stay vacated.
The office is directed to communicate this order to the court of Assistant Judge where the execution case is pending. The learned Assistant Judge is also directed to proceed with the execution case No.5 of 200 I in accordance with law.