IN THE SUPREME COURT OF BANGLADESH
HIGH COURT DIVISION
(Civil Appellate Jurisdiction)
First Miscellaneous Appeal No. 318 of 2015
In the matter of:
Md. Emdadul Haque Molla, son of Al-haj Khalilur Rahman Molla of village- Molladanga, Police Station- Daulatpur, District- Khulna, at present: Village- Pabla Kabir Bot Tola (North to BDR Camp), Daulatpur, Khulna.
… Appellant
-Versus-
Bangladesh House Building Finance Corporation, Head Office- 22, Purana Paltan, Dhaka represented by its Zonal Manager, Zonal Office, Zone-6, Khan-a-Sabur Road, Khulna.
…Respondent.
None appeared
…For the appellant Mr. Sikder Mahmudur Razi with
Mr. Md. Zahirul Islam, Advocates
....For the respondent
Heard on 28.08.2024. Judgment on 29.08.2024.
Present:
Mr. Justice Md. Mozibur Rahman Miah
And
Mr. Justice Md. Bashir Ullah
Md. Mozibur Rahman Miah, J.
1
At the instance of the judgment-debtor in Title Execution Case No. 99 of 2005 and that of the petitioner in Miscellaneous Case No. 224 of 2008 filed under order XXI, rule 90 of the Code of Civil Procedure, this appeal is directed against the judgment and order dated 30.10.2014 passed by the learned District Judge, Khulna in the said Miscellaneous Case dismissing the case.
The salient facts leading to preferring the appeal are:
The present opposite-party as petitioner namely, Bangladesh House Building Finance Corporation originally filed a case being Miscellaneous Case No. 204 of 2000 under Article 27 of Bangladesh House Building Finance Corporation Order, 1973 (PO No. 07 of 1973) for realization of taka 6,32,943/09 against the present petitioner as of default loan. It has been stated in the petition so filed in the Miscellaneous Case in short, is that, the petitioner availed a loan to the tune of taka 2,40,000/- for erecting homestead by mortgaging the scheduled land as a security to repay the loan. It has been stipulated in the deed of mortgage that, the said loan is to be repaid within 25 years with a monthly installment of taka 2,128/33 with interest at the rate of 13% per annum. Subsequently, the said loan was rescheduled and then the interest rate was reduced to 10% per annum and the monthly installment was then fixed at taka 2,938/82. But as the said borrower herein the petitioner failed to repay the said loan in time, the respondent then filed the case claiming an amount of taka 6,32,943/09 till 31.07.2000. However, the opposite-party herein the appellant did not contest the said case, the same was allowed ex parte on 12.11.2004.
Since the opposite-party to the case herein the appellant did not come forward to pay the claim amount as ordered, the present respondent then initiated an execution case being Title Execution Case No. 99 of 2005 on 22.11.2005 claiming an amount of taka 7,71,715/69 up to 31.08.2005. During the course of the execution case, the property so mortgaged with the respondent then put on auction sale on several occasions, but no bidder participated in the auction. Ultimately, on 13.01.2008 fixed for auction sale the decree-holder-respondent sought permission to the executing court to purchase the mortgaged property as an auction purchaser under order XXI, rule 72 of the Code of Civil Procedure when the total claim stood at taka 8,76,763/94 and the decree-holder- respondent auction purchased the said property through adjusting the claim and ultimately the said purchase was confirmed vide order dated 06.03.2008. Long after confirming the said auction, the judgment-debtor as petitioner then filed an application under order XXI, rule 90 of the Code of Civil Procedure for setting aside the auction sell alleging inter alia that, no notice as provided under Order XXI, rule 54 as well as rule 66 of the Code of Civil Procedure has been served upon the judgment- debtor. It has further been alleged that, the notice of auction was also not published in any dailies and no drum was biting to circulate holding of the auction. It has also been alleged that, the mortgaged property was sold in auction in a throwaway price without properly assessing the value of the mortgaged property which was taka 16,50,586/- at the time of holding auction and on those very allegations, the judgment-debtor- appellant prayed for setting aside the said auction. Against that
application, the decree-holder herein the respondent filed written objection and the learned Judge of the executing court upon hearing, vide impugned order dated 30.10.2014 dismissed the said Miscellaneous Case holding that, all the legal provision so have been provided in order XXI, rule 54 and 66 of the Code of Civil Procedure has been complied with in publishing auction notice as well as selling the property in auction to the decree-holder having no scope to set aside the auction and thus dismissed the Miscellaneous Case.
It is at the stage, the auction purchaser as appellant preferred this appeal.
At the time of admission of the appeal, this court stayed all further proceeding of Title Execution Case No. 99 of 2005 initiated by the respondent till disposal of the appeal.
This matter was taken up for hearing yesterday when the learned counsel for the appellant was found absent and we heard the learned counsel for the respondent-corporation at length and since the learned counsel for the appellant did not appear, we deferred the matter today for passing judgment to enable the learned counsel for the appellant to make his argument yet the learned counsel for the appellant did not bother to turn up to press the appeal though the matter appeared in the list with the name of the appellant and the respondent.
However, Mr. Sikder Mahmudur Razi along with Mr. Md. Zahirul Islam, the learned counsels appearing for the respondent upon taking us to the impugned judgment and order and all the documents appended therewith including the application for stay and other documents annexed at the very outset submits that, the learned District Judge committed no error of law in dismissing the Miscellaneous Case as from the order sheet so have been annexed with the memorandum of appeal clearly depicts that, all the legal formalities for serving notice of the execution case as well as auction has duly been served upon the judgment-debtor-appellant. More so, the auction notice was also published in the dailies in three consecutive occasions having no scope to allege that, the notice has not been served upon the judgment-debtor.
The learned counsel further contends that, the Miscellaneous Case itself was barred by limitation as under Article 166 of the Limitation Act, the judgment-debtor-appellant will get 30(thirty) days time from the date of holding auction to challenge the auction under order XXI, rule 90 of the Code of Civil Procedure for setting aside the auction but the Miscellaneous Case was filed long after the said limitation which is totally barred though the said legal point has not been taken into consideration while dismissing the Miscellaneous Case by the learned District Judge.
We have considered the submissions so advanced by the learned counsel for the respondent and perused the memorandum of appeal including the application for stay. We have also gone through the order sheet so have been annexed with the memorandum of appeal and we find from the order being nos. 2, 4 as well as 6 that all the legal formalities for holding auction has duly been complied with having no scope to say that, the auction was held without complying with the respective provision of law having no reason to set aside the auction held on 13.01.2008.
Given the above facts and circumstances and the materials available on record as discussed above, we don’t find any illegality or impropriety in the impugned judgment and order that warrants any interference by this court.
Accordingly, the appeal is dismissed however without any order as to costs.
The order of stay granted at the time of admitting the appeal dated 21.09.2015 stands recalled and vacated.
Let a copy of this judgment along with the lower court records be transmitted to the court concerned forthwith.
Md. Bashir Ullah, J.
I agree.
Abdul Kuddus/B.O.