IN THE SUPREME COURT OF BANGLADESH
Mr. Justice Hasan Foez Siddique,C.J. Mr. Justice Obaidul Hassan
Mr. Justice M. Enayetur Rahim
CIVIL APPEAL NO.115 OF 2015
(From the judgment and order dated the 20th January, 2011 passed by a Division Bench of the High Court Division in Writ Petition No.8197 of 2010)
Md. Hamiduzzaman : . . . Appellant -Versus-
Joint District Judge and Artha Rin : . . . Respondents Adalat, Faridpur and others
For the Appellant
For the Respondent Nos.3-5 For the Respondent No.2
: Mr. Qumrul Haque Siddique, Advocate with Mr. Nakib Saiful Islam, Advocate instructed by Mr. Nurul Islam Chowdhury, Advocate-on-Record
: Mr. Abdun Noor Dulal, Advocate instructed by Ms. Shahanara Begum, Advocate-on-Record
: Mr. Md. Kamrul Alam Kamal, Advocate instructed by Ms. Shirin Afroz, Advocate-on-Record
For the Respondent Nos.1, 6-7 : Not represented
Date of Hearing : The 2nd day of August,2022
Date of Judgment : The 3rd day of August, 2022
J UD G M E N T
M. Enayetur Rahim, J: This appeal, by leave, is directed against the judgment and order dated 20.01.2011 passed by the High Court Division in Writ Petition No.8197 of 2010 discharging the Rule.
Facts, relevant for disposal of the appeal are as
The present appellant is the successor of the judgment- debtor Khoceja Zaman @ Khodeja Begum (the defendant No.2) in Artha Rin Suit No.10 of 2004, which was instituted by the respondent No.2, Islami Bank Bangladesh Limited, Khulna Branch (hereinafter referred to as the Bank) for recovery of Tk.4,01,55,468.00 as on 2nd February, 2003.
Though the judgment debtor-the defendant No.1 entered into appearance in the suit but ultimately he did not contest the same and the suit was decreed ex-parte on 8th May, 2005. Thereafter, the decree holder Bank filed Execution Case No.104 of 2005 in the Artha Rin Adalat, Faridpur. In the said execution case, auction notices were published under section 33(1)(4) of the Artha Rin Adalat Ain (hereinafter referred to as the Ain) and attempts were made to sell the mortgaged property twice. As no bidder participated in the said auctions, the decree holder-Bank filed an application on 22nd July, 2008, for issuance of a certificate for conferring title of the mortgage property in its favour under section 33(7) of the Ain. When the said application was pending, both the parties tried to resolve their dispute through mutual compromise, but failed. Ultimately the executing court allowed the said application by an order dated 1st July, 2009. The judgment debtor prayed for postponement of issuance of the certificate and the learned Judge allowed him time to pay the outstanding dues by 6th September, 2009. As the judgment debtor failed to deposit the money and did not take any step on the date fixed by the executing court, the executing court by an order dated 6th September, 2009 rejected the application
dated 5th July, 2009 and passed an order to prepare the certificate. Subsequently, the court issued the certificate on 9th September, 2009 and sent it for registration on 29th September, 2009, when the present appellant as a heir of Khodeja Zaman filed an application on 5th September, 2010, for staying operation of the certificate and allowing him to pay
th of the outstanding due within one month and to pay the remaining dues by eight installments.
In the said application it is contended, inter-alia, that he is the younger brother of defendant No.1 and son of defendant No.2; his mother, the defendant No.2 did not execute any mortgage deed in favour of the respondent-Bank; he was in dark about the execution proceedings and he along with his three brothers and five sisters inherited the mortgaged property. His parent’s graveyards were situated on the mortgaged land. A title suit being No.24 of 2010 for partition of the mortgaged land was pending before the 1st Court of Joint District Judge, Faridpur, and the respondent- bank had been made a defendant therein.
Meanwhile, the Bank had sold the mortgaged land to the present respondent Nos.3-5 by three separate registered sale deeds. Under such situation, the appellant moved before the High Court Division challenging the orders dated 1st July, 2009 and 6th September, 2009 passed in the execution case, obtained a Rule and secured an interim order on 10th October, 2010, to the effect that in case he deposits Taka 2,00,00,000/- (two crore) only on or before 30th December, 2010, the order of stay as prayed for would be granted. Subsequently, he had deposited the said amount in favour of the respondent-Bank and filed an affidavit to that effect.
The High Court Division after hearing the Rule by the impugned judgment and order discharged the same.
Being aggrieved by and dissatisfied with the impugned judgment and order, the writ petitioner filed civil petition for leave to appeal No.592 of 2011 and leave was granted to consider the following grounds:
Mr. Qumrul Haque Siddique, learned Advocate, appearing for the appellant submits that the High Court Division has failed to appreciate that, as per provisions of section 5(4) of the Ain the impugned decree was mere a preliminary decree for sale amounting to a preliminary decree for foreclosure, and erroneously hold that the mortgage decree ‘attained’ finality after issuance and registration of the certificate under section 33(7) of the Ain.
Mr. Haque further submits that, right to redeem a mortgage subsists up to 66 years and the appellant had expressed his willingness to redeem the mortgage at the latest on 05.09.2010 by filing application in the Adalat, which was even before 08.09.2010 when the Bank sold part of the property in question to the respondents No.3 to 5, without getting possession of the same.
He also submits that the appellant has paid Tk. 1,25,00,000/- before 16.10.2010 and paid another Tk. 2,00,00,0000/- as per order of the High Court Division by Pay Order dated 29.11.2010 and is ready and willing to pay the balance amount of the decree for redemption of the mortgage.
Mr. Abdun Noor Dulal, learned Advocate, appearing for the respondent Nos. 3 and 4, submits that the appellant is the heirs of judgment debtor Khodeja Zaman alias Khodeja Begum (defendant No.2), and that the said Khodeja Begum mortgaged her land to the Islami Bank Bangladesh Limited and due to non-payment of the outstanding loan the Bank authority published auction notices in the daily newspaper and lastly the Artha Rin Adalat, Faridpur issued a certificate under section 33(7) of the Artha Rin Adalat Ain, 2003. Subsequently, the respondent Nos.3 and 4 purchased the land after following all relevant law and regulation vide Registered Deed Nos.9916 and 9917 dated 08.09.2010. The respondent Nos.3-4 invested huge amount for purchasing the land and the appellant has not taken any steps regarding the land until purchased by the present respondents and thereafter, with malafide intention filed the writ petition. The respondents are the bonafide purchasers of the suit land for value, who had purchased the property after following the procedure of law and as they have acquired a good title in the property in question.
Mr. Noor further submits that the respondent No.1 issued the certificate in favour of the respondent No.2, decree holder-Bank under Section 33(7) of the Ain, regarding land in question in due process of law and there is nothing arbitrarily or malafide or anything done in violation of law. The Appellant being a heir of the judgment debtor had full knowledge of the suit as well as of the execution case. He has lost his right to redeem the property mortgaged by his predecessor in interest, with issuance of certificate of title in favour of the Bank.
He also submits that, after issuance of the certificate under section 33(7) of the Ain, it was presented for registration on 29.09.2009 and subsequently the mortgaged property was sold to respondent Nos.3 to 5, the decree passed by the Artha Rin Adalat attained its finality with issuance of the certificate and delivery of possession. After attainment of mortgage decree in finality, the mortgagor judgment debtor has lost his right to redeem the said property. The law provides to the executing court to issue certificate of title in an execution proceeding under the Ain, if the mortgaged property cannot be sold in auction. As such there is nothing wrong in issuance of certificate under section 33(7) of the Ain and as such the present appeal is liable to be dismissed.
Mr. Md. Kamal Alam, the learned Advocate, appearing for the respondents No.2, Bank has adopted the submissions made by the learned Advocate for the respondent Nos.3-5.
We have considered the rival submissions of the learned Advocates for the respective parties, perused the impugned judgment, leave granting order and other materials as placed before us.
The High Court Division in discharging the Rule has held that the notice under section 30 of the Ain was duly served upon the judgment debtors; the defendant No.1 judgment debtor was given ample opportunity to pay off the loan and release the property, but without doing so, he dragged the matter for years together by moving various applications on this and that plea; he had moved writ petition before the High Court Division and kept the execution case pending for two years, but ultimately allowed it to be discharged for default; in the execution proceedings, auction notices were published in four news papers, and attempts were made twice to sell the mortgaged property; as no bidder had participated in the bid, the decree holder-Bank filed application for issuance of certificates in its favour under section 33(7) of the Ain; the executing court allowed the same by the impugned order; the summons of the suit were served upon defendant No.2, who did not appear; the writ petitioner-defendant No.1 though had appeared, he did not contest the suit and allowed it to pass exparte decree; the writ petitioner mysteriously silent about the date of the death of the defendant No.2- judgment debtor whether he died before or after the issuance of the certificate; after the certificate was registered on 29th September, 2009, the mortgaged property was sold to the purchaser, and the decree had attained into finality.
To address the issue involved in the present appeal it is necessary to look into section 33 of the Ain which run as follows:
Ò33| wbjvg weµq|-(1) A_© FY Av`vjZ wWµx ev Av‡`k Rvwii mgq †Kvb m¤úwË
weµ‡qi †ÿ‡Î ev`xi Li‡P weÁwß cÖPv‡ii ZvwiL nB‡Z Ab~¨b 15(c‡bi) w`e‡mi mgq
w`qv mxj‡gvniK…Z †UÛvi AvnŸvb Kwi‡e, D³ weÁwß Kgc‡ÿ eûj cÖPvwiZ GKwU evsjv RvZxq ‰`wbK cwÎKvq, Z`ycwi b¨vq wePv‡ii ¯^v‡_© cÖ‡qvRb g‡b Kwi‡j ¯’vbxq GKwU cwÎKvq, hw` _v‡K, cÖKvk Kwi‡e; Ges Av`vj‡Zi ‡bvwUk †ev‡W© jUKvBqv I ¯’vbxqfv‡e
†X‡j mniZ †hv‡MI D³ weÁwß cÖPvi Kwi‡e|
(2) cÖ‡ZK `i`vZv, D×…Z `i Db~aŸ© 10,00,000 (`k jÿ) UvKv nB‡j Dnvi 20%, D×…Z `i 10,00,000 (`k jÿ) UvKv A‡cÿv AwaK Ges Ab~aŸ© 50,00,000 (cÂvk
jÿ) UvKv nB‡j Dnvi 15% Ges D×…Z `i 50,00,000 (cÂvk jÿ) UvKv A‡cÿv
AwaK nB‡j Dnvi 10% Gi mgcwigvb UvKvi, RvgvbZ ¯^iƒc, e¨vsK WªvdU ev †c-AW©vi
Av`vj‡Zi AbyKz‡j `ic‡Îi mwnZ `vwLj Kwi‡eb|
(2K) `icÎ mivmwi wbw`©ó `icÎ ev‡· wKsev †iwRw÷ªK…Z WvK‡hv‡M wba©vwiZ mg‡qi g‡a¨ wba©vwiZ KZ…©c‡ÿi wbKU †cÖi‡Yi gva¨‡g `vwLj Kwi‡Z nB‡e|
(2L) Ab~aŸ© 10,00,000 (`k jÿ) UvKvi D×…Z `i M„nxZ nBevi cieZ©x 30(wÎk)
w`e‡mi g‡a¨, 10,00,000 (`k jÿ) UvKv A‡cÿv AwaK Ges Ab~aŸ© 50,00,000
(cÂvk jÿ) UvKvi D×„Z `i M„nxZ nBevi cieZ©x 60 (lvU) w`e‡mi g‡a¨ Ges
50,00,000 (cÂvk jÿ) UvKvi AwaK D×…Z `i M„nxZ nBevi cieZ©x 90 (beŸB)
w`e‡mi g‡a¨, `i`vZv mgy`q g~j¨ cwi‡kva Kwi‡eb Ges Zvnv Kwi‡Z e¨_© nB‡j Av`vjZ
Rvgvb‡Zi UvKv ev‡Rqvß Kwi‡et
Z‡e kZ© _v‡K †h, mswkøó wWµx`vi-Avw_©K cÖwZôvb wjwLZ `iLv¯Í `vwLj Kwiqv `vwq‡Ki myweav‡_© mgqmxgv ewa©Z Kwievi Rb¨ Aby‡iva Kwi‡j, Av`vjZ GB Dc-avivi Aaxb
wba©vwiZ mgqmxgvi AbyaŸ© 60(lvU) w`em ch©šÍ ewa©Z Kwi‡Z cvwi‡e|
(2M) wWµx`v‡ii c‡ÿ hw` wjwLZfv‡e Av`vjZ‡K GB g‡g© AewnZ Kiv nq †h, Dc-aviv
(2) Gi Aaxb `vwLjK…Z `ic‡Î m¤úwËi cÖ¯ÍveK…Z g~j¨ A¯^vfvweKfv‡e Ach©vß ev Kg
Ges Av`vjZ hw` Dnv‡Z GKgZ †cvlY K‡i, Zvnv Bn‡j Av`vjZ, KviY wjwce× Kwiqv,
D³ `i cÖ¯Íve AMÖvn¨ KwiZ cvwi‡e|]
(3) [Dc-aviv (2L) Gi Aaxb] RvgvbZ ev‡Rqvß nB‡j Dnvi A_© wWµx`vi‡K cÖ`vb Kiv
nB‡e, wWµxK…Z `vexi mnwZ D³ A_© mgš^q Kiv nB‡e, Ges AZtci Av`vjZ, wØZxq
m‡e©v”P Ki`vZv KZ©„K D×…Z `i Ges c~‡e© ev‡RqvßK…Z RvgvbZ GK‡Î m‡e©v”P `i`vZv KZ…©K D×…Z `i A‡cÿv Kg bv nB‡j, D³ wØZxq m‡e©v”P `i`vZv‡K m¤úwË wbjvg Lwi` Kwi‡Z nB‡e AvnŸvb Kwi‡e; Ges wØZxq m‡e©v”P `i`vZv‡K m¤úwË wbjvg Kwi‡Z AvnŸvb Kwi‡e; Ges wØZxq m‡e©v”P `i`vZv [AvûZ nBevi ci Dc-aviv (2L) G wba©vwiZ mgqmxgvi
g‡a¨ m¤ú~b© g~j¨] cwi‡kva Kwi‡eb Ges Zvnv Kwi‡Z e¨_© nB‡j Zuvnvi RvgvbZ ev‡Rqvß
nB‡e Ges Rvgvb‡Zi D³ A_© wWµx`vi‡K wWµxi `vexi mwnZ mgš^q Kwievi Rb¨ cÖ`vb
(4) †Kvb m¤úwË [Dc-aviv (1), (2), (2K), (2L), (2M), (3) Gi weavb Abymv‡i]
bxjv‡g weµq Kiv m¤¢e bv nB‡j, Av`vjZ cybivq Kgc‡ÿ eûj cÖPvwiZ 2(`yB) wU evsjv
RvZxq ˆ`wbK cwÎKvq, Z`ycwi b¨vq wePv‡ii ¯^v‡_© cÖ‡qvRb g‡b Kwi‡j ¯’vbxq GKwU cwÎKvq, hw _v‡K, Dc-aviv (1) Gi Abyiƒc c×wZ‡Z weÁwß cÖKvk KivBqv Ges
Av`vj‡Zi †bvwUk †ev‡W© †bvwUk UvsMvBqv I ¯’vbxq †Xvj mniZ‡hv‡M mxj‡gvniK…Z †UÛvi AvnŸvb Kwi‡e; Ges weµq I ev‡Rqvß wel‡q [Dc-aviv (2), (2K), (2L), (2M) I (3)
G D‡jøwLZ weavb] AbymiY Kwi‡e|
[(4K) Dc-aviv (1) I (4) Gi Aaxb cwÎKvi gva¨‡g weÁwß Rvix Kwievi †ÿ‡Î, ev`x
wjwLZev‡e Av`vjZ‡K †h cwÎKvi bvg AewnZ Kwi‡eb Av`vjZ Z`byhvqx D³ cwÎKvq
weÁwß cÖKvk KivB‡e|]
(5) †Kvb m¤úwË [Dc-aviv (1), (2), (2K), (2L), (2M), (3) I (4) Gi weavb
Abymv‡i] weµq Kiv m¤¢e bv nB‡j D³ m¤úwË wWµxK…Z `vex cwic~Y©fv‡e cwi‡kvwaZ bv
nIqv ch©šÍ `Lj I †fv‡Mi AwaKvimn wWµx`v‡ii AbyKz‡j b¨v¯Í Kiv nB‡e Ges wWµx`vi
[Dc-aviv (1), (2), (2K), (2L), (2M), (3) I (4)Gi weavb Abymv‡i] D³ m¤úwË
weµq Kwiqv Acwi‡kvwaZ wWµxi `vex Av`vq Kwi‡Z cvwi‡e, Ges Av`vjZ H g‡g© GKwU mvwU©wd‡KU Bmy¨ Kwi‡e|
(6) wWµxK…Z As‡Ki AwZwi³ A_© weµq eve` Av`vq nB‡j, D³ AwZwi³ A_© `vwqK‡K
†dir cÖ`vb Kwi‡Z nB‡e, Ges weµxK…Z A_© wWµxi `vex A‡cÿv Kg nB‡j Aewkó A_©
eve` 28 avivi weavb mv‡c‡ÿ, Av‡iv Rvixi gvgjv MÖnY‡hvM¨ nB‡e|
[(6K) Dc-aviv (5) I (6) Gi weav‡b hvnv wKQzB _vKzK bv †Kb, †h‡ÿ‡Î †Kvb m¤úwË,
`Lj I †fv‡Mi AwaKvimn, wWµx`v‡ii AbyKz‡j b¨¯Í Kiv m‡Z¡I wWµx`vi D³ m¤úwË
Dchy³ g~‡j¨ cÖKvk¨ wbjv‡g weµq Kwi‡Z Amg_© nb, †m‡ÿ‡Î D³ m¤úwËi wba©vwiZ g~j¨
wKsev hyw³msMZ AvbygvwbK g~j¨ ev` w`qv, aviv 28 Gi weavb mv‡c‡ÿ, Rvixi gvgjv
`v‡qi Kiv nB‡e|
(6L) GB avivq wfbœZi hvnv wKQyB _vKzK bv †Kb, Dc-aviv (5) Gi Aax‡b †Kvb m¤úwË,
`Lj I †fv‡Mi AwaKvimn, wWµx`v‡ii AbyKz‡j b¨v¯Í nBevi †ÿ‡Î, Abyiƒc b¨v¯Í nBevi
6(Qq) erm‡ii g‡a¨ Dc-aviv (7) Gi Aaxb wWµx`v‡ii c‡ÿ Av`vj‡Zi wbKU wjwLZ
Av‡e`b Kwiqv D³ m¤úwËi gvwjKvbv AR©b Kiv hvB‡e Ges Zvnv bv Kiv nB‡j 6 (Qq)
ermi DËxY© nBevi mv‡_ mv‡_B D³ m¤úwË‡Z wWµx`v‡ii gvwjKvbv ¯^qswµqfv‡e ewZ©Z nB‡e Ges mswkøó Av`vjZ nB‡Z Zrg‡g© †NvlYv ev mb` MÖnY Kiv hvB‡e|]
(7) Dc-aviv (4) I (5) Gi weavb m‡Z¡I, wWµx`vi, DwjøwLZ m¤úwË gvwjKvbv m‡Z¡
cvB‡Z AvMÖnx g‡g© Av`vj‡Zi wbKU wjwLZfv‡e Av‡e`b Kwi‡j, Av vjZ, [Dc-aviv (1),
(2), (2K), (2 L), (2M) I (3) Gi weavbvejxi †Kvbiƒc nvwb bv NUvBqv,] Dc-aviv (4) I (5) Gi Kvh©µg AbymiY Kiv nB‡Z weiZ _vwK‡e; Ges wWµx`v‡ii cÖvw_©Zg‡Z
D‡jøwLZ m¤úwËi ¯^Z¡ wWµx`v‡ii AbyK~‡j b¨¯Í nBqv‡Q g‡g© †NvlYv cÖ`vbc~e©K Zrg‡g© GKwU mb`cÎ Rvix Kwi‡e Ges RvixK…Z GBiƒc mb`cÎ m‡Z¡I `wjj wnmv‡e MY¨ nB‡e;
Ges Av`vjZ Dnvi GKwU Abywjwc mswkøó ¯’vbxq mve-‡iwR÷ªv‡ii Awd‡m wbeÜ‡bi Rb¨
[(7K) Dc-aviv (5) ev (7) Gi Aaxb m¤úwËi `Lj Av`vjZ‡hv‡M cÖvß nIqv Avek¨K nB‡j, wWµx`v‡ii wjwLZ Av‡e`‡bi wfwË‡Z Av`vjZ wWµx`vi‡K D³ m¤úwËi `Lj Ac©Y Kwi‡Z cvwi‡e|
(7L) Dc-aviv (7K) Gi Aaxb wWµx`vi‡K m¤úwËi `Lj Ac©Y Kwievi c~‡e© Av`vj‡Z
cybtwbwðZ nB‡Z nB‡e †h, D³ m¤úwËB AvBbvbyMfv‡e Dnvi cªK…Z gvwjK KZ…©K wWµxi mswkøó F‡Yi wecix‡Z eÜK cÖ`vb Kiv nBqvwQj A_ev wWµx Kvh©Ki Kwievi j‡ÿ¨
`vwq‡Ki cÖK…Z ¯^Z¡ `Ljxq m¤úwË wnmv‡e D³ m¤úwËB †µvK Kiv nBqvwQj|]
(8) eZ©gv‡b cÖPwjZ Ab¨ †Kvb AvB‡b hvnv wKQzB _vKzK bv †Kb, Dc-aviv (7) Gi
Aax‡b RvixK…Z mb`cÎ eve` †Kvb Ki ev †iwR‡óªkb wd Av`vq‡hvM¨ nB‡e bv|
(9) Dc-aviv (5) Gi Aax‡b m¤úwËi `Lj I †fv‡Mi AwaKvi A_ev Dc-aviv (7) Gi Aax‡b m¤úwËi ¯^Z¡ wWµx`v‡ii AbyKy‡j b¨¯Í nB‡j, aviv 28 Gi weavb mv‡c‡ÿ, D³ wWµx Rvix gvgjvi P~ovšÍ wb®úwË nB‡e|Ó. (Underlines supplied)
In view of the provision of sub-section 9 of section 33, it is abundantly clear that if the property is transferred as per provision of section 33(7) of the Ain, the decree will attend its finality and the execution case shall be disposed of subject to the provision of section 28 of the Ain. In the instant case the decree has attained its finality.
Mr. Noor referring to section 12(8) of the Ain, submits that in the view of above provision of law the right, title and interest of the respondent Nos.3-5 would not be affected in any way.
Mr. Qumrul Haque Siddique, learned Advocate appearing for the appellants submits that issuance of certificate in favour of decree holder-Bank under section 33(7) of the Ain does not effect of cessation of right to redeem.
Section 5(4) of the Ain, provides as follows:
Ò5| Av`vj‡Zi GKK GL&wZqvi|-(1) Ab¨ †Kvb AvB‡b hvnv wKQzB _vKzK bv †Kb, Dc-
aviv (5) I (6) Gi weavb mv‡c‡ÿ, Avw_©K cÖwZôv‡bi FY Av`vq m¤úwK©Z hveZxq gvgjv aviv 4 Gi Aaxb cÖwZwôZ, †NvwlZ ev MY¨ nIqv A_© FY Av`vj‡Z `v‡qi Kwi‡Z nB‡e
Ges D³ Av`vj‡ZB Dnv‡`i wb®úwË nB‡e|
(4) The Transfer of property Act, 1882 A_ev eZ©gv‡b cÖPwjZ Ab¨ †Kvb AvB‡b wecixZ hvnv wKQzB _vKzK bv †Kb, Dc-aviv (3) Gi Aaxb
eÜKx gvgjv e¨wZ‡i‡K, GB AvB‡bi Aaxb `v‡qiK…Z †Kvb gvgjvq, Av`vjZ KZ…©K cÖ`Ë wWµx ev`x Avw_©K cÖwZôv‡bi c‡ÿ wbw¯Œq mgvwßi (Foreclosure) cÖv_wgK wWµx
wnmv‡e MY¨ nB‡e, Ges F‡Yi wecix‡Z ev`xi AbyKz‡j eÜKx ¯’vei m¤úwË wWµxi avivevwnKZvq wbjvg weµq nIqv gvÎB D³ cÖv_wgK wWµx P~ovšÍ wWµx wnmv‡e MY¨ nB‡e,
Ges weµq P~ovšÍ Ges µq ˆea MY¨ nB‡e Ges AZtci D³ m¤úwË cybiæ×vi Kwievi †Kvbiƒc AwaKvi (Right to redeem) weev x-`vwq‡Ki _vwK‡e bv|Ó
If we analyze section 5(4) of the Ain then it will be
clear that said provision of law will be applicable when the
mortgaged property sold in auction in process of execution by
the Court only.
In the instant case no such auction was held by the executing court though attempts were made twice. Thus, it is our considered view that provision of section 5(4) of the Ain will not be applicable in the facts and circumstances of the present case, in particular the alleged mortgaged property was never sold in auction through court, rather it was transferred in favour of the decree holder Bank by the executing court as per provision of section 33(7) of the Ain. Thereby, right, title, interest and possession of the property in question had vested in favour of the decree holder-Bank, eventually who sold the property to respondent Nos.3-5.
Section 12(8) of the Ain runs as follows:
Ò(8) AvcvZZt ejer Ab¨ †Kvb AvB‡b wfbœiƒc hvnv wKQzB _vKzK bv †Kb, GB avivi Aaxb Avw_©K cÖwZôvb KZ…©Klien, pledge, hypothecation A_ev
Mortgage Gi Aaxb cÖvß ÿgZve‡j †Kvb RvgvbZx ¯’vei ev A¯’vei m¤úwË weµq Kiv nB‡j, D³ weµq †µZvi AbyK~‡j ˆea ¯^Z¡ m„wó Kwi‡e Ges †µZvi µq‡K †Kvbfv‡eB ZwK©Z Kiv hvB‡e bvt
Z‡e kZ© _v‡K †h, Avw_©K cÖwZôvb KZ…©K weµq Kvh©µ‡g †Kvbiƒc A‰eaZv ev c×wZMZ Awbqg _vwK‡j, RvgvbZ cÖ`vbKvix FY-MÖnxZv Avw_©K cÖwZôv‡bi weiæ‡× ÿwZc~iY `vex Kwi‡Z cwi‡eb|Ó
The above law has given a protection to a purchaser in a
execution process. Right, title and interest conferred upon
the purchaser for value cannot be called in question. If any
illegality or irregularity is found in process of sell, the
judgment debtor may claim compensation from the decree holder-Bank.
In this connection we may referred to the case of Sonali Banks, Sadarghat Corporate Branch, Dhaka Vs. Mrs. Hazera Islam and others, reported in 6 ADC, Page-975, wherein this Division has observed that-
“It appears that the decree of foreclosure in favour of the plaintiff attained its finality and the judgment debtor shall have no right to redeem the said mortgaged property. Moreover after issuance of the certificate under Section 33(5) of the Artha Rin Adalat Ain the same court of Artha Rin Adalat Ain had no power to entertain the application of the appellant invoking Section 57 of the Artha Rin Adalat Ain as such power under Section 57 is only available when the other provisions of the Ain are not exhaustive. In this case after the certificate issued under Section 33(5) of the Ain the decree-holder has already sold the suit property in favour of the respondent No.8, Md. Rafique by registered sale deed and therefore there is no scope to interfere with the bonafide purchase for value.”(Underlines supplied)
Moreover, it is admitted by the respective parties that the respondent Nos.3-5 having purchased the property in question transferred some of the properties to different persons by different legal instruments and nature and character of the property has been changed and in the mean time various multistoried buildings have been constructed.
Having considered and discussed as above, we find no merit in the appeal.
Accordingly, the appeal is dismissed without any order of cost.
However, the Artha Rin Adalat is directed to return the money to the appellant deposited by him.
B/O.Imam Sarwar/ Total Wards:3,684