1. This appeal has been filed by the decree-holder and it arises out of an objection petition filed by the judgment-debtor before the executing Court.
2. The facts giving rise to this appeal are as follows:-The decree-holder-appellant filed an execution case being Title Execution Case No. 53 of 1967 before the Munsif, Second Court, Gaibandha, to execute the decree passed by the Shapmara Union Council Conciliation Court in Conciliation Court Case No. 13 of 1966. Before the executing Court the judgment-debtor respon--dent filed an objection against the execution contending that the decree passed in the said conciliation case is no longer existing and the Conciliation Court had already dismissed the Conciliation Case No. 13 of 1966 and set aside the decree. It was further contended by the judgment-debtor that the Conciliation Court itself had no jurisdiction to try the said case, as the decree --holder and the judgment-debtor were residents of different unions and the case itself involved question of title in land the subject --matter of the litigation was outside the ambit of the jurisdiction of the Conciliation Court. It was further pointed out that the contentions of the judgment-debtor in this regard were upheld by the Conciliation Court and the ex parte decree was recalled and the Conciliation Court itself arrived at a decision that in view of the nature of the litigation the same could not be tried in a Conciliation Court and accordingly directed the parties to take recourse to the superior Court. The Conciliation Court accordingly dismissed the suit. The executing Court, however, found that the places of residence of both the parties were within Shapmara Union and as such the Shapmara Union Conciliation Court had jurisdiction over the parties. The objection of the judgment-debtor as filed under section 47 of the Code of Civil Procedure was therefore rejected and the execution case was directed to proceed. The judgment-debtor filed an appeal against this order of the executing Court.
3. After hearing the appeal the learned District Judge found that the Conciliation Court admitted an application on 27-12-66 for restoring the Conciliation Court Case No. 13 of 1966 which was disposed of on 6.12-66. It was noticed that on 28-3-1967 time was extended up to 9-5-1967 to the defendant in that case, that is, in Conciliation Court Case No. 13 of 1966, to file objection. The learned District Judge further found that the words "(Baadi)" "(Bebaadi)" in the order dated 9-5-67 undoubtedly refer to Abdul Malek Mia, that is, the decree-- holder, and Moslemuddin SK, that is, the judgment- debtor respectively and came to the conclusion that the order of dismissal passed on that date undoubtedly refer to the Original Case No. 13 of 1966. The learned District Judge further noticed that in the written statement filed by Moslemuddin Sheikh, the judgment-debtor, objection was taken as to the maintainability of the conciliation case as a question regarding the title in the land was involved. The learned District Judge further found that the decree which was sought to be put into execution was not existence. The order dated 9-5-1967 clearly meant that the subject-matter of the litigation could not be adjudicated by the Conciliation Court and the parties were directed to file the same before the superior Court and accordingly dismissed the suit. It was therefore found that the decree-holder had no decree at his credit to execute and the decree itself was no longer in existence. The lower appellate Court accordingly allowed the appeal and set aside the order of the executing Court. The execution case was struck off and the miscellaneous case was allowed.
4. Against this order the present second miscellaneous appeal has been filed.
5. Mr. Md. Fazlul Karim, the learned Advocate for the appellant has contended firstly that the Conciliation Court had no power to set aside the decree which was passed by that Court as there was no provision regarding exercise of such power. It is difficult to accept this contention of the learned Advocate. Sub-rule (2) of rule 17 of the East Pakistan Conciliation Court Rules, 1962 clearly gives such power to the Chairman of the Conciliation Court to restore a case to file where the same is heard in the absence of the respondent and is decided against him provided the case relates to part 1 and the application for such restoration is made within 10 days of the date of the decision. Under such circumstance the Chairman if satisfied that there was sufficient cause for his non-appearance and that he did not act negligently then the Chairman of the Conciliation Court is entitled to restore the same and re-hear the matter. The said sub-rule reads as follows:- "(2) Where a case is heard in the absence of the respondent under clause (a) of sub-rule (1) and is decided against the respondent, the respondent may, within 10 days of the date of the decision apply in writing for the restoration of the case to the Chairman of the Conciliation Court and if the Chairman is satisfied that there was sufficient cause for his non---appearance and that he had not acted negligently the Chairman may restore the case and fix a date for its re-hearing."
6. It is therefore obvious that the Conciliation Court did have power under such circumstance to restore a suit to file and f to vacate its own decree or order if sufficient cause is shown for the same.
7. Mr. Fazlul Karim, the learned Advocate for the appellant next contended that the Court of appeal below acted illegally in upholding the objection of the judgment-debtor and allowing the Misc.
8. Case and in striking off the execution case in view of the fact that the restoration order and dismissal of the Conciliation Case No. 13 of 1966 was itself illegal in view of the fact that the petition for restoration was itself filed more than 10 days after the passing of the decree. The learned Advocate pointed out that the final order of the Conciliation Court giving rise to the decree was passed on 6 12-66 and the restoration petition was filed and admitted on 27-12-66 and it was obvious therefore that the restoration petition was filed more than 10 days after the date of the decision. It was contended that in view of that the final order of the Conciliation Court which was passed on 9-5-67 was illegal and as such the executing Court should not have given effect to the same. In view of this contention of the learned Advocate for the appellant it' is necessary to examine the provisions of sub-rule (2) of rule 17 of the East Pakistan Conciliation Court Rules, 1962. It is true that the rule provides that the restoration petition requires to be filed within 10 days of the date of the decision if the decision which is sought to be challenged is passed in the absence of the respondent. It is obvious that the sub-rule provides for securing relief in a case where an order is passed to the prejudice of a party who is unaware of the passing of such order. The sub-rule is in the nature of a remedial provision and is designed to secure redress to an uninformed party. There is no assurance that such a party will come to know about the proceeding or a prejudicial order within a certain fixed period of time. It may as well be that such a party may only come to know of such prejudicial l, order when process for execution is taken against him by way of attachment and other measures. It is obvious therefore that the intention of framing such a rule was to require such a party to come as expeditiously as possible before the Court, so that finality in such litigation can be arrived at expeditiously. A party, however, may succeed in knowing such an order within the 10th day of the date of the order. It is obvious therefore that the period of 10 days should therefore be reckoned from the date when the party came to know of such an order.This view of mine finds adequate support from a decision of our Supreme Court in the case of Allahdino v. Fakir Muhammad (PLD 1969 SC 582). In this case the Supreme Court was called upon to interpret the import of section 8 of the West Pakistan Board of Revenue Act, 1957. Section 8 of the Act is in the following terms:- "8(1). Any person considering himself aggrieved by a decree or order made by the Board and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence was not within his knowledge or could not be produced by him at the time when the decree was passed or the order was made, or on account of some mistake or error apparent on the face of the record (or for any other sufficient reason) desires to obtain a review of the decree passed or order made against him, may apply to the Board for a review of judgment and the Board may, after giving notice to the parties affected thereby and after hearing them, pass such decree or order as the circumstances of the case require.
(2) Every application for a review of a decree or order under subsection (1) shall be made within ninety days from the date of that decree or order."
9. The question that was raised before the Supreme Court was as to what will be the starting point of this period of limitation of 90 days when the order came to be known to the party at a much later date. Sajjad Ahmed, J. While considering this point observed as follows:- "It is clear from these circumstances that the appellant did not know about the result of his revision petition which was decided behind his back until the intimation received from the reader on the 28th of March 1963. His review application brought within 90 days from that date was, therefore, within time. In a case where a litigant is kept in dark about the fate of his case, it is wrong to say that for a remedial action against it as provided by law time would start to run against him from the date of the order and not from the date when he comes to know about it."
10. It is obvious therefore that in such a remedial measure the period should be calculated from the date of the knowledge of the party.
11. There is yet another reason as to why the contention of the learned Advocate for the appellant should not be upheld. It is well settled that an executing Court cannot go behind the decree. It is true that under certain circumstances where the decree is without jurisdiction or is a nullity then the executing Court is entitled to take notice of such circumstances. (See observation of their Lordships of the Privy Council in the case of Bank of Bihar v. Sarangdhar Singh and another (AIR 1949 P C 8), Full Bench case of High Court of East Punjab in the case of Firji Safdar A.I v. The Ideal Bank Limited and others (AIR 1949 E Pb. 94). Illegality in, the order only other grounds, however, cannot give such scope to the executing Court. Want of jurisdiction is not the same thing as illegal exercise of jurisdiction. (See the case of Cora Chand Haldar v. Prafulla Kumar Roy (AIR 1925 Cal.
12. 907), and also the case of Bajirao v. Sakharam (AIR 1931 Bom. 295). It is therefore well established that an executing Court cannot refuse to execute the decree because it is against law or contravenes any provision of any statute. In this case alb even if it is accepted that the Conciliation Court erroneously entertained the application for restoration and review and illegally dismissed the Conciliation Court Case No. 13 of 1966 and directed the parties to approach the higher Court still it cannot be said that the executing Court was entitled to examine to legality of such an order. The judgment-debtor permitted to f his objection before the Conciliation Court after his review application was entertained. Various objections were raised by the judgment-debtor including the one relating to the fact that the adjudication of the matter needed decision on the question of title of the land. It is obvious, therefore that the Conciliation Court had materials before it for deciding the question of jurisdiction over the suit itself. When the decree itself was set aside and the suit was dismissed then there was no material before the executing Court to proceed with the execution case. It is obvious therefore that the Court of appeal below was right in allowing the miscellaneous appeal and dismissing the execution case.
13. Mr. Fazlul Karim the learned Advocate for the appellant also mentioned that the judgment-debtor came to know of the decree of the Conciliation Court as passed in Conciliation Case No. 13 of 1966 on 11-12-66 and he filed the application on 27-12-66. He, therefore contended that on the face of that fact the application for restora--petition was barred by time. We have further been informed that the decree itself was drawn up on 19-12-66 Mr. Nurul Islam, the learned Advocate for the respondent responded that the period of limitation of 10 days should be calculated from this date that is 19-12-66. He further contended that on 11-12-66 the judgment-debtor actually came to hear this decree from some people in the locality and it took some time for him to get the full particulars about the decree. It is not necessary to enter into any controversy regarding this matter. Even if it is accepted that the order of the Conciliation Court was illegal, the jurisdiction to pass such an order clearly rested with the Conciliation Court. All that is necessary for me to see is whether the executing Court is entitled to question the order setting aside the decree on the ground of any illegal exercise oil such jurisdiction. As I have already held patent want of jurisdiction is not to be confused with the illegal exercise of such jurisdiction. In view of this it is difficult for me to uphold the contention of the learned Advocate for the appellant on this point.