Bangladesh vs. Md. Salimullah [1983 BLD (AD) 10]

Court

Appellate Division

Case Name

Bangladesh vs. Md. Salimullah

Citation

1983 BLD (AD) 10

Petition No

C.A. 90 of 1981 & C.Ps. 30.31 & 68 of 1982 & 9 of 1981

Date of Decision

30.06.1982

Name of the Parties

Md. Salimullah, Hamidul Huq Chowdhury, Syed Ali, Mofizur. Rahman Maiumder and others

Matter

The question involved is whether petitions under Article 102 of the suspended Constitution (suspended under the Proclamation of Martial Law on March 24, 1982) pending before the High Court Division for judgment and civil petitions for special leave to appeal and civil appeals arising from judgments of the High Court Division passed in such petitions stand abated.

Factual Background

On 24 March 1982, the than Chief of Army Staff of the Bangladesh Army Lt. Gen. Hussain Muhammad Ershad declared himself the Chief Martial Law Administrator and suspended the Constitution of the People's Republic of Bangladesh by imposing Martial Law through a Proclamation. Thereafter, a question common arose in view of the Proclamation that whether petitions under Article 102 of the suspended Constitution pending before the High Court Division for judgment and civil petitions for special leave to appeal and civil appeals arising from judgments of the High Court Division passed in such petitions stand abated or not. 

Legal Views

Suspension of the constitution by the Proclamation has completely taken away the Writ jurisdiction of the High Court Division and in the absence of Writ jurisdiction neither the High Court. Division nor the Appellate Division is competent to pass any order on the Writ application. So far as the appeals before the Appellate Division are concerned there cannot be any controversy with regard to abatement of appeals. By the operation of clauseing of the proclamation the appeals either by certificate or by special leave have abated and with the abatement of the appeals the judgments under appeal along with the writ petitions have also abated. Since a petition for special leave to appeal is transformed into an appeal only after compliance of the requirements of the Rules: and an appeal by certificate becomes pending only after filing of the petition of appeal, pending appeals includes only these appeals wherein petition of appeal has been filed: or after leave granted by this court requirements under the Rules have been complied with. There is no dispute that petitions for special leave pending in this court and the writ petitions pending in the High Court Division have abated. Abatement of the special leave petition does not affect the judgment of the High Court Division. ~ Mr. Justice Ruhul Islam

There is no controversy that the writ petitions which are pending before the High Court Division abate. Next (1) the petitions for special leave to appeal from the, judgment of the High Court Division, and (2) the appeals filed before this court either with special leave or a certificate which are pending for hearing also abate. It is not disputed that the judgments winch have been given in writ petition and which have not been challenged by appeal is not affected by clause (g). Judgments of the High Court Division which are not the subject matter of any pending appeal are not hit by the abatement clause and such judgment do not come within the meaning of the expression "proceeding". Where special leave has been granted but requisites according to the Rules have not Seen used, petition for special leave will only abate or when after certificate granted by the High Court Division no appeal has been filed before the issuance of the proclamation the certificate itself will be in fructuous but in both the cases the Writ petition and the judgments of the 'High' Court Division remain unaffected and will not abate. ~ Mr. Justice Badrul Haider Chowdhury

Execution of any decree during the pendency of appeal is subject to the result of the appeal and in case the decree is reversed or varied the process of execution is put into reverse gear, the appellant becoming entitled to restitution under Section 144 of the Code. This clearly shows that no finality is reached in the case of a judgment or decree when it is under challenge in an appeal. I am strongly of the view that an appeal is the continuation of the original application, that when an appeal is pending the whole matter is reopened and becomes sub-judice and as such, the judgment appealed from is not final. Consequently when the appeal abates by operation of law, the application also abates. ~ Mr. Justice Shahabuddin Ahmed 

Important discussion

The abatement of petitions for special leave and appeals by special leave arising out of applications under Article 102 of the Constitution, the judgments challenged therein along with the original applications under Article 102 of the Constitution shall also abate. ~ K.A. Bakr, Attorney General

Direction

N/A

Decision

The Hon'ble Court held that where leave petitions or appeals against decision of the High Court Division were pending before the Appellate Division, not only the proceeding before the Appellate Division but also the proceeding concluded in the High Court Division abated on the principle that an appeal is a continuation of the suit. It is submitted that abatement of an appeal does not have the effect of abatement of the suit and if the analogy of suit is brought in, the result should be otherwise.

Full Judgment

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