P L D 1969 Dacca 300 (PLP)

5 Chandanpara 13 30‑10‑1961 6 Rumghata 14 30‑10‑1961 7 Sukakatgar 16 30‑10‑1961 8 Karnnat 18 30‑10‑1961 9 Manoharkbali 19 30‑10‑1961 (6) That the copy of the sale proclamation shows that the property worth more than two lakhs of rupees was valued by the opposite‑party judgment‑debtor at only Rs. 1,100 which price is shockingly low and is manifesting the suppression and fraud practised upon the Court." It is clear from the original petition of objection and the aforesaid paragraph that the real object and purpose of the application was to challenge the execution proceedings which led to the impugned sale at the instance of Muhammad Saheb Mia. It is also clear that Muhammad Saheb Mia was aware that that was the case sought to be made out by the Official Liquidator in this Court. This will be borne out by the supple mentary affidavit‑in‑opposition sworn on his behalf on the 18th of August 1965. The first affidavit‑in‑opposition was sworn by Muhammad Saheb Mia on the 8th of March 1965. Paragraph 7 (a) of the affidavit‑in‑opposition dated 8th March 1965, runs thus: " . . When the Bank made default In payment this opposite -party No. 1 started Money Execution Case No. 10 of 1956 for realisation of the same but no objection by the Bank under sections 69 and 70 of State Acquisition and Tenancy Act the said case was ultimately stayed by the Hon'ble High Court by its order dated 27‑5‑57 till the debts of the judgment‑debtor be scaled down and compensation for the same be paid . . . " It is clear that there is no such modification in the order passed by this Court which qualifies the operation of the stay order to be confined till the debts of the judgment‑debtor be scaled down and compensation for the same period be paid. There was no time limit imposed upon the operation of the stay order because the parties were left to draw the attention of the Court for such modification when the occasion question arose. The order which emanated from this Court was an unrestricted and unquali fied one, so far as its nature and operation were concerned. Muhammad Saheb Mia further goes on to say in the said paragraph: "Then on 7‑9‑59 this opposite‑party No. I applied for execu tion only for the decretal money deposited subsequent to 7th April 1948amounting to Rs. 2,215‑2‑6 as well as for the cost of the suit amounting to Rs. 1,020‑15‑0 asserting (that) they are beyond the scope of sections 69 and 70 of the said Act . . . ." The aforesaid paragraph is sufficient to indicate the nature of the subterfuge and contrivance to which Muhammad Saheb Mia had resorted. He was trying to execute the same decree although its execution was unequivocally stayed by an order of this Court. The contravance was to limit the claim for a smaller sum by giving out that the said sum represented the deposits subsequent to the 7th of April 1948. The application may be ingenious but it cannot deceive any body. The decree was one decree and the debt of the judgment‑debtor was one debt; it could not be divided in the manner as Muhammad Saheb Mia has set out to enforce by a slick device. It is thus clear that the second execution proceeding was not maintainable. By an illegal proceeding. Muhammad Saheb Mia succeeded in obtaining an order of execution of a decree which this Court had stayed in its entirety, for an indefinite period of time. It is rather inexplicable how a Court could have given any order in favour of Muhammad Saheb Mia when apprised of the stay order. It has been vigorously asserted by a statement by the Official Liquidator himself that notices in respect of the execution case as well as the sale of the property were suppressed. The state ments that have been made by the Official Liquidator leave no manner of doubt that he was seeking to set aside the execution proceedings on the ground that the decree was fraudulently obtained and, further more, on the ground that the executing Court had no jurisdiction to entertain such an application in the face of the order passed by this Court as communicated to the executing Court. It is in the aforesaid context that the application made under section 61 of the Banking Companies Ordinance, 1962, should be considered. Such an application was male and it was tried by a Single Bench of this Court taking company matters. The trial Court took the view that the application was in the nature of a suit and that the Official Liquidator was competent to bring such a suit, having regard to the provisions of the said Ordinance. The trial Court accepted the averment of the Official Liquidator that the aforesaid sale was vitiated because the second execution proceeding itself was vitiated. As a result thereof the trial Court passed the following order: "In these circumstances, I order that the sale held on 10‑2‑60 in Money Execution Case No. 37 of 1959 of the 1st Court of the Subordinate Judge at Chittagong which sale was confirmed on 17‑3‑60 be set aside. The sale certificate dated 19‑4‑60 granted to the respondent No. 1 be cancelled. The respondent No. 1 is hereby directed to make over to the Official Liquidator all the amounts received by him as compensation, as rent of the premises and the compensation advance received by him from respondent No. 3 as detailed in the affidavit dated 19‑7‑65 filed by the respondent No. 2 together with any other sum or sums which he may have realised in connection with the said property. The respondent No. 1 is further directed to hand over to the Official Liquidator all documents relating to the property which may be in his hand. The respondent No. 2 is directed to pay the balance of the compensation Money to the Official Liquidator. If the order above is not complied within one month from the date of its drawing up, the Official Liqui dator is given leave to file a supplementary list of debtors under section 63 (2) of the Banking Companies Ordinance, 1962, showing the respondent No. I and the respondent No. 2 as debtors and for setting the debts against them as calculated in accordance with the order made by me when the respondent No. 1 can claim set off his decretal dues.". It is against the judgment pronounced by the trial Court and the order passed by it, as stated above, that this appeal has been filed. At the hearing of this appeal Mr. Syed Ishtiaq Ahmad appeared on behalf of the appellant and has ably argued the case on behalf of his client. Having regard to the un-contestable facts, which we have stated above, our finding is that a fraud has been perpetrated by Muhammad Saheb Mia with regard to the impugned execution proceeding and the consequent sale of the property in question. At the outset Mr. Ishtiaq Ahmed has argued that a matter like this is of such consequential nature that it should not be decided on mere affidavits, but on a full trial, as in a suit. Normally on an issue like this, we would have ourselves directed a fuller enquiry in the matter. But the scheme of the Ordinance is to get such a matter adjudicated in the High Court itself. Secondly, what the nature of the allegation in this case? What is, in fact, the issue which has to be decided? On the one hand, it is alleged that the second execution case, as set out above is tainted with fraud perpetrated by Muhammad Saheb Mia by suppressing notices and process of Court and, on the other hand, there is an assertion that notices were not suppressed. It should be remembered that it is not possible for either of the parties to lead any protracted evidence; the issue of necessity, at this stage has to be tried by summary evidence which would be available in the shape of assertions made on behalf of one party and a denial by the other. The nature of the allegations is suppression of notices and processes in conducting the aforesaid execution case. Whenever fraud is alleged the most pertinent question that arises before a tribunal called upon to adjudicate upon the matter is to decide as to who stands to gain by the transaction. The answer is simple and clear. Mohammad Saheb Mia stands to benefit in an overwhelming manner. Whereas his claim was for Rs. 3,000, he has, in fact, succeeded in obtaining a property valued at near about a lac and half rupees. He not only stood to gain, but the overwhelming nature of the windfall is also a material circumstance which throws a flood of light on the probabilities of the case. Can there be any manner of doubt that it is highly probable that Muhammad Saheb Mia, under the circumstances, might have resorted to a subterfuge and fraud? The circumstantial evidence against him is deadly. If we now turn to the actual return, we will find that the process server has appended a certificate that the left the notice on the table of one Nagendra Lal Singh whom he has described as Manager‑in‑charge. It was not personally served on him. In the first place, the aforesaid story itself is not worthy of credence, and, in the second place, leaving the notice on the table of the respondent's Manager is by no manner or means service on the Bank. Mr. Akhtaruddin Ahmad has asserted that the Bank had received no notice whatsoever with regard to the execu tion proceedings. He has said so, on full enquiry. He has made this statement from the bar and we have no hesitation in accepting such statement which comes under circumstances stated above. We do not know what other kind of evidence Mr. Ishtiaq Ahmad could have produced as against this statement. In any event, the notice, as purported to have been served was an invalid service of notice under the law. It must therefore, be held that no legal notice was served can the respondent Bank. To such non‑service the contribution came from the process server for the benefit of Muhammad Saheb Mia. It must be held that the execution proceeding was illegal, ultra vires and without jurisdiction because of the fraud that has been perpetrated in this behalf. Furthermore, the executing Court had no jurisdiction to entertain the application when it was brought to its notice that this Court had stayed execution of the decree in its entirety. It is, 't therefore, not permissible to execute a part of the decree in another garb. Mr. Ishtiaq Ahmad has argued that by an amendment of Rule 22 of Order XXI, Civil Procedure Code, sub‑rule (3 has been added to the rule. It has been provided that "Omission to issue notice in a case where notice is required under sub rule (1), or to record reasons in a case where notice is dispensed with under sub‑rule (2) shall not affect the jurisdiction of the Court in executing the decree". This sub‑rule has provided that the jurisdiction of the executing Court would not be treated as a nullity merely on the ground of non‑service of notice under that rule. It does not, conversely, mean that non‑service of notice will, in fact, confer jurisdiction on the executing Court when it is found to be otherwise without jurisdiction. In the first place, fraud is a totally separate allegation by itself and there can be no room for any argument that fraud does not have the effect of rendering the entire proceeding to be a nullity. Ids this case fraud has been alleged and accepted by the trial Court. A suit would lie to set aside the execution proceeding and to declare it to be a nullity on the averment that it is void because of fraud in obtaining the decree. Even if it be held that the matter should be agitated under section 47 of the Code of Civil Procedure, the present jurisdiction of this Court under the Banking Companies Ordinance, would be attracted. It has been noticed that the proceeding can be impeached as a nullity on the ground that the executing Court had no juris diction to proceed with the application when apprised of the order of the stay passed by this Court. The stay operates in toto. Just because this Court had stated that the execution proceeding was stayed under sections 69 and 70 of the East Bengal State Acquisition and Tenancy Act, it was not open to an inferior Court to interpret the operation of sections 69 and 70 in the face of the positive direction that the entire decree was stayed. Is it possible to revive the same proceeding in respect of the same decree by giving up some claim and bolstering up another one out of the same decree? We have no manner of doubt that a suit could have been instituted in order to impeach the said execution proceeding. The next question is, whether such a suit, and/or an application under section 47 of the Code of Civil Procedure, would be barred by the law of limitation? We are in complete agreement with the observations made by the trial Court in this behalf, and, in fact, they have been impeached, on the limited ground that the period of limitation in such a case would be one year, which would run from the date of knowledge of the sale which, according to the applicant, was 5th of June 1962. It is said that the aforesaid Ordinance came into force on the 7th of June 1962. Is it correct to say that the period of limitation is one year from the date of knowledge of the sale as specified in Article 12 of the Limitation Act or would Article 9"5 thereof govern the case? Article 12 runs thus: "12.‑ To set aside any of the following sales:‑‑ (a) sale in execution of a decree of a Civil Court; One year When the sale is con firmed, or would otherwise have be come final and conclusive had no such suit been brought. And Article 95 is as follows; `'

95. To set aside a decree obtained by fraud, or for other relief on the ground of fraud. Three years When the fraud be comes known to the party wronged." It is clear and patent that it is Article 95, as quoted above, and not Article 12, which will be attracted. The view that we have taken in this behalf is supported by a long series of deci sions and it is unnecessary for us to specify them. Thus, under the Ordinance, this application will not be barred as the applicant is entitled to the advantage given by the said Ordinance. The result, therefore, is, that this appeal fails on the grounds, which were pressed, and pressed strenuously, before us. It is, therefore, dismissed with costs. A. S. CHOWDHURY J.‑I agree. A. H. Appeal dismissed.