P L D 1966 Dacca 110 (PLP)

A preliminary decree appears to have been passed in a partition suit filed at the instance of the petitioners. After that the final‑ decree was also passed in due course on or about 23‑11-1961. Thereafter the petitioners wanted to take delivery of possession of the plots allotted in their Saham and for that purpose the decree was put into execution. The Pleader Commis sioner went to the locale but was obstructed by the opposite party. Thereupon the pleader Commissioner and the petitioners applied to the Court stating that delivery of possession could not be arranged in view of the obstructive 'attitude of the opposite‑party. The opposite‑party in his turn also made an application in terms of Order XXI, rule 97 of the said Code. All these matters were heard together and upon consideration of the materials placed before the learned Subordinate Judge, the application under Order XXI, rule 97 of the said Code as presented by the opposite‑party Ishaque Sardar was found to be maintainable and was also allowed. The decree holder's petition for drawing proceedings against Ishaque Sardar was however rejected. It is against the first part of the said order whereby the application under Order XXI, rule 97 of the said Code was allowed that the present Rule has been obtained. Mr. B. N. Chowdhury in support of the rule contends that the very finding that Kashimuddin Ghazi was Benamidar of the petitioner ought to have been construed as a finding that Ishaque Sardar was the real owner. As such the real owner was bound by the terms of the preliminary decree obtained in the partition suit and the learned Subordinate Judge was accordingly in error and acted with material irregularity in the exercise of his jurisdiction in not rejecting the application under Order XXI, rule 99 of the Code of Civil Procedure. Mr. Khondkar has raised several preliminary objections and has also contested on merits. His contention is that on a reference to the records of the case it appears that after the order dated 20‑7‑1963, was passed the petitioners preferred an application under Order XLVII, rule 1 of the said Code and that application having been rejected, no remedy under section 115 of the said Code was open to the petitioners at all. It is difficult for us to agree with Mr. Khondkar on this point. No authority has been placed before us to show that because an application under Order XLVII, rule 1 of the said Code failed on merits or otherwise, the right of seeking remedy under section 115 of the said Code should be deemed to have been lost. Mr. Khondkar's next contention was that if Ishaque Sardar was regarded as a judgment debtor then his objection should be treated as one under section 47 of the said Code and as such the order dated 20‑7‑1963 was appealable and no appeal having been preferred the application under section 115 of the said Code was not maintainable. This contention also does not seem to us to be very sound. If Ishaque Sardar was to be regarded as judgment‑debtor even though he claimed to be an independent third party and took his stand on independent title and possession then his application under Order XXI, rule 97 of the said Code was to be regarded as one under section 47 of the said Code and in that case that application having not raised any question regarding execution, discharge or satisfaction of the decree within the meaning of section 47 of the said Code was liable to be dismissed. Be that as it may, the application of Ishaque Sardar was in substance an application under Order XXI, rule 97 of the said Code. As such no question of appeal arises in this case. Mr. Khondkar then submits that on a perusal of the order as passed by the learned Subordinate Judge it would appear that Ishaque Sardar was in possession and that on his own account. He, therefore, contends that if deeper questions of title were to be examined then the proper remedy for the petitioner was to take recourse to the provisions of Order XXI, rule 103 of the said Code and in that case no relief under section 115 of the said Code should be available to the petitioners. Mr. Chowdhury, on the other hand, contends that the learned Subordinate Judge could take notice of the fact that Ishaque Sardar was bound by the result of the partition suit against Kashimuddin Ghazi who was declared to be the Benamidar. Question of Benami and the consequences of relation ship on the footing of a Benami transaction raised questions of fact and law both together. In our view, such a question can be very well thrashed out in a regular suit. Apart from that there is nothing on record to show that any such case was made out at any sage before this. Neither the written objection preferred against the application of Ishaque Sardar under Order XXI, rule 97 nor in the application under section 115 of the said Code any such point appears to have been raised or made out. Even if it were raised we would deem it to be a proper thing to be enquired into in a regular suit as contemplated under Order XXI, rule 103 of the said Code. Considering the facts of the case and nature of the decrees and the transactions relied upon by the opposite party it seems proper that the bone of contention or the dispute should be set at rest by taking recourse to a regular suit as indicated above. The petitioners ought therefore to seek relief in that way. We do not feel, therefore, called upon to interfere with the order passed in a summary proceeding under Order XXI, rule 99 of the said Code in view of the peculiar nature of the case. The result, therefore, is that this Rule is discharged with no order as to costs. SALAHUDDIN AHMED, J.‑I 'agree. K. B. A. Rule discharged.