IN THE SUPREME COURT OF BANGLADESH HIGH COURT DIVISION
(SPECIAL ORIGINAL JURISDICTION)
Writ Petition No. 12379 of 2016. In the matter of:
An application under article 102 (2) of the Constitution of the People’s Republic of Bangladesh.
-And- In the matter of: Shahidul Islam
...... Petitioner
-Versus-
The Government of the People’s Republic of Bangladesh represented by the Secretary, Ministry of Law, Justice and Parliamentary Affairs and others.
Mr. Sudhendu Kumar Biswas, Advocate
. . . for the petitioner.
Mr. Md. Rukunuzzaman, Advocate
. . . For the respondent No.2.
Present:
Mr. Justice J. B. M. Hassan and
Mr. Justice Razik Al Jalil
Heard on 12.10.2023 and Judgment on 17.10.2023.
J. B. M. Hassan, J.
The petitioner obtained the Rule Nisi in the following terms:
“Let a Rule Nisi be issued calling upon the respondents to show cause as to why the impugned order No. 92 dated 15.06.2016 passed by the respondent No.3, Judge, Artha Rin Adalat, 1st Court, Satkhira in Artha Rin Execution Case No. 20 of 2005 disposing of the Artha Rin Execution Case No.20 of 2005 pending execution of warrant of arrest issued earlier with a direction to proceed with the Artha Rin Execution Case No. 4
1
of 2012 (Annexure-F) should not be declared to have been passed without lawful authority and is of no legal effect and/or pass such other or further order or orders as to this Court may seem fit and proper.”
Relevant facts leading to issuance of the Rule are that the respondent- Bank, namely, Sonali Bank Ltd. (respondent No.2) obtained a decree against the petitioner and others for Tk. 15,22,92,164.01 with up to date interest till realization of loan. To execute the said decree the Bank filed Artha Rin Execution Case No. 20 of 2005 and attempted to sell the mortgage properties. But failing to sell the mortgage property, the Adalat awarded civil imprisonment for six months to the petitioner and others. While the warrant was pending in 1st execution case, the decree holder Bank filed 2nd execution case No. 4 of 2012. Subsequently, by the impugned order dated
15.06.2016 the Adalat passed the following order:
“Bcn qu k, Aœ S¡l£ j¡jm¡¢Vl L¡kÑœ²j ®ce¡c¡lNel ¢hl¦Ü Cp¤ÉL«a X¢hÔE/H S¡¢jml fËaÉ¡n¡u Bf¡aax ¢eÖf¢š Ll¡ qCm Hhw ®pC p¡b ¢Xœ²£c¡lfrL AbÑGe S¡l£ 4/12 j¡jm¡u q¡¢Sl qCu¡ a¡q¡cl c¡h£ c¡Ju¡/hš²hÉ ®fn L¢la f¡¢lhe jjÑ ®O¡oe¡ l¢qmz”
In this backdrop, the petitioner filed this writ petition and the Rule
Nisi was issued.
Mr. Sudhendu Kumar Biswas, learned Advocate for the petitioner submits that during existence of the 1st execution case, there is no scope to file 2nd execution case. Further, the warrant issued in the 1st execution case can not be executed in the 2nd execution case and so on misconception of law
the Adalat passed the impugned order which warrants interference by this Court.
Mr. Md. Rukunuzzaman, learned Advocate for the respondent No.2 contends that since the warrant of civil imprisonment was passed and warrant was not executed in the 1st execution case it may be continued for ends of justice.
We have gone through the writ petition and other materials on record.
In the first execution case the Adalat issued warrant of arrest but it could not be executed until disposal of the 1st execution. We fail to understand in such circumstances what prompted the Bank to file 2nd execution case. In the 1st execution case the Bank has the option to dispose of the mortgaged property and also to execute the warrant in connection with civil imprisonment. Even if the limitation period under section 28(4) of the Act, 2003 does not exist, the decree holder has the scope to remain in the 1st execution case and can realize the decretal dues by attaching new property, if the period of civil prison is served out and mortgaged properties are disposed of, but can not meet adjustment of entire decretal dues. Therefore, there is no necessity to file the 2nd execution case. In view of above, impugned order is declared to be without lawful authority and 2nd execution case No.4 of 2012 is set aside.
The Artha Rin Adalat and the Bank are directed to take all steps in 1st execution case and to proceed with the same in accordance with observation made above.
With this observation and direction the Rule is disposed of.
Communicate a copy of this judgment and order to the respondents at
once.
J. B. M. Hassan, J
I agree.
Razik Al Jalil, J