P L D 1961 Dacca 177 (PLP)

"If any suit or proceedings for the recovery of any arrears which have vested in the Provincial Government under clause (c) of subsection (4) of section 3 or under clause (7) of section 44 or any proceeding in execution of a decree for the recovery of any such arrears is pending before any Civil Court on the date or day, as the case may be, referred to in the said clauses, such suit or proceeding shall not be further proceeded with and shall be deemed may be executed as if it were a certificate filed under the Bengal Public Demands Recovery Act, 1913." The executing Court had no jurisdiction to hold the sale, and, as such, the sale is null and void. Before the determination of this question another pertinent question arises, namely, whether after the Court leas disposed of the execution case after con firming the sale, as application under section 47 of the Code of Civil Procedure read with section 63 of the State Acquisition Act is tenable. Excepting the Calcutta High Court, some other High Courts have come to the conclusion that after the execution has been fully disposed of by the executing Court, the executing Court has no jurisdiction to entertain an application under section 47 of the Code of Civil Procedure. For this, reference may be made to the case of Firm Wasti Rama Gurditta Mal and others v. Mst. Ganeshi (A I R 1939 Lah. 405). The Calcutta High Court has accepted this proposition of law with certain modification. In the case of Sharat Chandra Gayan v. Port Canning and Land Improvement Co., Ltd. (224 1 C 335), it has been held. that the con firmation of sale is not a bar to an application under section 47, the question being one which relates to the execution and satis faction of the decree ; but if the judgment‑debtor was actually a party to the order for sale, and did not appeal against it, he is precluded from questioning the propriety of the order, and the sale held in pursuance of that order. The same view has also been taken in the case of Bhan Kumar Chandra and another v. Lachmi Kanta Rai Naik Kalia and others (A I R 1941 Pat. 566). Section 47 of the Civil Procedure Code provides "All questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the discharge or satisfaction of the decree shall be determined by the Court executing the decree, and not by a separate suit." Now, the question is, whether, when the case has been disposed of after confirmation of the sale, the executing Court becomes functus officio or not. If it becomes functus officio then section 47 of the Civil Procedure Code has no application, but if it does not then, it has got jurisdiction. In my opinion, when the executing Court has disposed of the execution case after con firmation of the sale the executing Court becomes functus officio, and, as such, any application under section 47 of the Civil Procedure Code is not maintainable by such Court. This view of mine finds support in the case reported in A I R 1939 Lah. 405.

4. Even assuming that the application under section 47 of the Code of Civil Procedure is tenable then even in accordance with the decision given in the case of Sharat Chandra Gayan v. Port Canning and Land Improvement Co., Ltd., the present application at the instance of the judgment‑debtors is not tenable in view of the finding arrived at by the lower Appellate Court to the effect that the appellants were aware of the proceedings, and the sale was held after due notice to them.

5. As to this, the learned Advocate contends that the question of knowledge and service of notice was not at all called for to be agitated in view of the fact that the case was disposed of on a preliminary point, namely, whether the application under section 47 of the Code of Civil Procedure was tenable. Even assuming that the case was disposed of on a preliminary point, in that case, in order to succeed on the question of maintainability of the application of the judgment‑debtors, they had to prove that they were not made parties in the proceed ings, nor any notice was served on them nor they were aware of the sale and also the execution proceeding. The order No. 12, dated 4th of November 1956, of the executing Court is as follows : "Petitioner filed hajira. Decree‑holder, Opposite‑party files written objection. Copy served. Let the written objection be accepted. Fix 18th February 1960, for preliminary hearing." Order No. 13, dated 18th February 1956, runs as follows : "Parties are ready. Case taken up for hearing and opened. No oral evidence is adduced by the parties. Heard Pleaders. To 24th February 1956, for order." In presence of such order it cannot be said that the Court did not give the petitioners any opportunity to examine any witness in support of their application under section 47 of the Code of Civil Procedure read with section 63 of the State Acquisition Act. In the absence of any evidence to show that the judgment- debtors were neither parties to the execution proceedings, nor they were aware of the execution case and sale, nor any notice was served on them, it may be assumed that the official act was done properly. The learned Judge has also come to the finding that the record shows that notices were served on the applicants Mr. Dutta urges that these documents have not been marked as Exhibits in this case. In view of the fact that the petitioners did not substantiate their case that they were not aware of the sale they cannot be given any further opportunity to fill up the lacuna at this stage. It is not contended by Mr. Dutta that a prayer was made before the Court below, and the same was refused. So, I do not find any justification in setting aside the order passed by the lower Appellate Court, and give the appellants further opportunity to fill up the lacuna in their case.

6. Mr. Dutta in this connection has taken another point, namely, that in view of the provisions of section 63 of the State Acquisition Act the executing Court had no authority to proceed with the execution case, and, as such, the sale held by such Court without having any jurisdiction to entertain an application for execution is nothing but a void one.

7. Mr. Hossain argues that by two subsequent Ordinances the provision of section 63 of the State Acquisition Act has been repealed, and in support of this contention he has relied on section 14 of the East Pakistan Ordinance No. III of 1956, which was published in the Gazette on the 22nd March 1956, and on the provision of section 20 of the East Pakistan Ordinance No. XIV of 1957 which was gazetted on the 15th August 1957.

8. In view of my decision on the previous point the determi nation of this question is mere an academic one. So, I do not intend to pass any opinion on this point.

9. In the result, the appeal is dismissed. The judgment and order of the lower Appellate Court are affirmed, but in the cir cumstances of the case I do not make any order as to costs.

10. Leave under clause 15 of the Letters Patent prayed for is granted. K.B. A. Appeal dismissed.