P L D 1969 Dacca 856 (PLP)

A. S. CHOWDHURY, J.‑These two appeals are directed against orders made in two Miscellaneous Cases arising out of a case for execution of the same decree. The facts relevant for the disposal of these two appeals are as follows: On 8‑8‑49 defendants Nos. 3‑9 agreed to grant a lease of certain property to the respondent Jahanara Begum in Appeal No. 82 of 1962 and on 9‑8‑49 the said defendant made another agreement for sale of the rent‑receiving interest of the demised premises to her husband Md. Ibrahim Mia. The trouble arose thereafter, when the suit land was leased to the defendant No. 10 Haji Saru Miah who is appellant in Appeal No. 82 of 1962 on 23‑11‑49 and the said defendant No. 10 granted a sub‑lease in favour of Haji Syedul Huq defendant No. 12 now there was a contest between the two sets of leases in a suit instituted by Jahanara Begum. The suit number being O. C. Suit No. 8 of 1950 of the Court of First Subordinate Judge, Chittagong was decreed by the trial Court and on appeal, the said decree was armed by the High Court and also Supreme Court. Mr. Md. Mozammel Huq, learned Advocate for the appellant argues that the learned Judge ought to have held that decree is not executable in this case and he placed ground No. 2 which is in the following terms: ‑ "

2. For that the learned Subordinate Judge should have held that the decree as armed by the High Court and the Supreme Court cannot prevail over the provision of section 9 and section 75‑A of the Tenancy Act which made the proposed lease unlawful and impossible." Mr. T. H. Khan, Senior Government Pleader, appearing for the respondent, submits that the executing Court cannot go behind the decree and there is absolutely no reason whatsoever to interfere with the impugned order. The plaintiff instituted the suit by virtue of the agreement of lease dated 8‑8‑49 and the agreement for sale of rent‑receiving interest to her husband on 9‑8‑

49. This suit was decreed by the trial Court on 9‑2‑

53. The appeal preferred against the said judgment and decree was disposed of on 28‑4‑

56. Section 75‑A of the East Bengal State Acquisition and Tenancy Act came into existence in 1954 by an amendment effected by the East Bengal Act No. XII of 1954. The judgment of the Supreme Court was passed in 1960. There also this question was not raised. Now when the decree ultimately passed by the Supreme Court is sought to be executed this question is raised for the first time before the executing Court. We unhesitatingly accept the contention of Mr. T. H. Khan that this question cannot be raised before tile executing Court for it cannot go behind the decree. The alleged error is not apparent on the face of the decree and as such the executing Court is bound to enforce the decree ultimately passed by the Supreme Court. It passes our comprehension as to how the executing Court can refuse to enforce a decree in this case. There is nothing in the decree itself which would suggest that it was beyond the jurisdiction of the trial Court to give the decree of the Supreme Court which ultimately upheld it. That being so we are of opinion that this contention of the learned Advocate is of no substance. Mr. Md. Mozammel Huq places his reliance on the case of Mennakshi Ammal v. Chidambaram Chettiar and another (A I R I947 Mad. 341). In that case it was held that although an executing Court could not go behind the decree, it would refuse to order the sale of any property where it was plain on the face of the record that its alienation was prohibited by statute or opposed to public policy. In this case it cannot be said that the title which is the foundation of the plaintiff's claim is on the face of it illegal for section 75‑A can be applied only after determination of certain issues of fact and this question not having been raised at any stage in the suit itself there is nothing in this case which can be said to be apparent on the face of the record to attract the decision in this case. That decision is therefore clearly disting uishable. That case also supports the contention of Mr. Khan in so far as it says that an executing Court cannot go behind the decree except in certain circumstances. Learned Advocate also places his reliance on the case of N. Adinarayana Chetty and another v. A. Chengiah Chetty and others (A I R 1937 Mad. 918). In that case it was held that the doctrine that an executing Court cannot go behind the decree would not be applicable to a case where objection is taken at the stage of passing the final decree in a mortgage suit, there being no executable decree and the suit must be deemed to be still pending. That case to say the least has no manner of application to the facts of the present case. Next case relied on by the learned Advocate for the appellant is Full Bench decision of the Allahabad High Court in the case of Katwari and others v. Sita Ram Tiwari (I L R 45 All. 547). In that case it was held that in view of the provisions of section 20 of the Agra Tenancy Act, 1901, a Court executing a decree could not order an occupancy holding to be sold, no matter, whether the decree was a decree directing the sale of the holding or was a simple money decree. It is clear that this case has also no application for we have already indicated that section 75‑A by itself cannot have the effect of declaration of a certain transaction being void unless A certain issues of the fact are determined prior to the application of the said section. On the other hand the contention of Mr. T. H. Khan is supported by a decision of the Privy Council in the case of Udwant Singh and others v. Tokhan Singh and others (I L R 28 Cal, 353). In that case their Lordships of the Judicial Committee of the Privy Council held that a point, which was raised in the suit itself cannot be agitated in the executing Court for to do so would be in effect to rehear the suit on the matter and such a step was held to be an error of procedure of a substantial kind, calculated to cause great irregularity in the conduct of a suit. In the case of the Bank of Behar Ltd. v. Sarangdhar Singh and another (P L D 1948 P C 237) their Lordships of the Privy Council held that the rule that an execution Court cannot go behind the decree is well‑established. To the same effect is the decisions reported in A I R 1951 Cal. 122 and A I R 1956 S C

359. The next point urged by Mr. Huq is that five plots have been set out in the Schedule to the draft of lease whereas only three plots are stated in the decree. This contention was considered by the learned Subordinate Judge who expressed himself in the following terms: ‑ "As regards point No. 2 it has been argued that 5 plots have been given in the Schedule of the draft of the lease, whereas only 3 plots appear in the decree. Here the learned lawyer for the petitioner has committed a mistake. Of course there are 3 plots in the decree but they are C. S. Plots which include 5 R. S. Plots . . . . ." So this point has got no basis. It is regrettable that the mistake by the petitioner in moving the application under section 47 is repeated by the learned Advocate for the appellant in this case as well, although it is clearly shown by the learned Judge in the observation quoted above that the point raised is without any basis whatsoever. Mr. Khan submits that the contention of the learned Advocate for the appellant is not sustainable. His argument is that had this question been raised in the trial Court or in the High Court or in the Supreme Court, the respondent would have been in a position to show that on the facts of this case section 75‑A was not applicable. It would then have been open to the respondent to show by adducing evidence that the two transactions effected on 8‑8‑49 and 9‑8‑49 constituted a sale and not a lease for the two documents read together would clearly indicate that the intention of the parties was to effect a sale. In the case of Province of East Pakistan v. Muhammad Hussain Mia (P L D 1965 S C 1) their Lordships of the Supreme Court held that: ‑ "If a transaction is entered into by more than one document, both the document's should, in our opinion, be read together and their combined effect considered. In the present case, the intention of the parties was clearly to effect an out and out transfer of all the right, title and interest of the transferor to the transferees. How this could be affected conveniently, whether by one document, or by more than one documents, was not very material. What had to be ascertained upon a proper consideration of these two documents together was as to what was the intention of the parties. If the intention was to make a complete out and out transfer, then the transaction was a sale not merely a lease, even though it may have been camouflaged as a lease for 99 years coupled with a conveyance of the residuary rent‑receiving interest absolutely which together effected a transfer of the entire bundle of rights of the transferor in these lands." Mr. Huq, however, argues that in that case both the docu ments were executed in favour of one person. We have already said that section 75‑A can be applied only when certain facts are found by a Court. This observation of ours will be clear from a bare reading of the section which is as follows: ‑ "75‑A.‑‑ (1) On and from the date of publication of a notifi ti6n under subsection (3) of section 17 or under subsection (1) of section 31, no person shall sublet any land in his khas possession in the area to which such notification relates. (2) Any subletting made in contravention of subsection (1) shall be null and void and the land so sublet shall be forfeited to the Provincial Government. (3) Any person may, at any time, apply to the Provincial Government for the acquisition of any of his khas lands under subsection (2) of section 3 on payment of compensation at the rate prescribed for such land in section 39." The section clearly indicates that the Court is to record a' finding that there has been a publication of notification under subsection (3) of section 17 or under subsection (1) of section 31, before section 75‑A can be applied. This finding is missing from this case. Secondly the Court has to construe a document in the case and to hold that a person has sublet his land in his khas possession. This question has not been raised in the suit. There has been no finding to that effect. The subletting does not become ipso facto null and void. It becomes so only when subletting is made in contravention of subsection (2). That position is made clear by subsection (2). Therefore, we are unable to agree with the learned Advocate for the appellant that the decree is a nullity on the face of it. For the reasons stated above, the appeals are dismissed with costs and the impugned orders are affirmed. Let the records of this case be sent down at once to enable the executing Court proceed with the execution without delay. A. H. KHAN, J.‑I agree. A. E. Appeals dismissed.