IN THE SUPREME COURT OF BANGLADESH HIGH COURT DIVISION
(SPECIAL ORIGINAL JURISDICTION)
WRIT PETITION NO. 10157 OF 2022
IN THE MATTER OF:
An application under Article 102 of the Constitution of the People’s Republic of Bangladesh.
And
IN THE MATTER OF: Abdul Hafiz Salawat
.... Petitioner
-Vs-
The learned Judge, Artha Rin Adalat No. 1, Chattogram and another
....Respondents
Mr. Minhazul Hoque Chowdhury with
Mr. Abdullah Al Mahmud, Advocates
......... For the Petitioner
Mr. Muhammad Ali Akkas Chowdhury, Advocate
........ For the respondents No. 2
Heard on: 17.01.2024 Judgment on: 29.01.2024.
Present:
Mr. Justice Md. Iqbal Kabir
and
Mr. Justice S.M. Maniruzzaman
S.M. Maniruzzaman, J:
In this Rule Nisi, issued under Article 102 of the Constitution of the People’s Republic of Bangladesh, the respondents have been called upon to show cause as to why the impugned Order No. 159 dated 04.04.2022
1
passed by the Judge, Artha Rin Adalat No. 1, Chattogram in Artha Execution Case No. 110 of 2006 detaining the petitioner for 5(five) months in civil imprisonment and issuing warrant of arrest against the petitioner and order No. 160 dated 09.06.2022 showing the petitioner arrested in Artha Execution Case No. 110 of 2006 (both contained in Annexure-J) should not be declared illegal, 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.
At the time of issuance of the Rule, the petitioner was enlarged on bail for a prescribed period.
Facts, in brief, for disposal of the Rule, are that the petitioner is a businessman and is engaged in the business of supplier, general merchant and commission agent in the name and style “M/S. Trade Mate.” For expansion of business the petitioner obtained loan from the respondent No. 2, Bank (First Security Islami Bank, Khatungonj Branch, Chattogram) amounting to Tk. 6,75,00,000.00 (Taka Six Crore Seventy Five lac) mortgaging the schedule property as security. The petitioner failed to repay the loan, consequently the bank instituted Artha Rin Suit No. 97 of 2004 for recovery of loan to the tune of Tk. 2,29,93,911.50 (Taka Two Crore Twenty Nine Lac Ninety Three Thousand Nine Hundred Eleven Point Five Zero) with up to date interest. Ultimately the suit was decreed on 04.06.2005. The petitioner failed to pay the decretal amount within the stipulated time and the bank put the decree in execution in the concerned Artha Rin Adalat No. 1, Chattogram being Artha Execution Case No. 110 of 2006. The Artha Rin Adalat tried to sell the mortgaged property by auction under Section 33 (1) and 33(4) of the Artha Rin Adalat Ain, 2003 (in short, the Ain) ultimately failed. Thereafter, considering the application of the decree-holder bank, the Artha Rin Adalat issued certificate of possession, use and sale of the mortgaged property under Section 33(5) of the Ain, 2003 in favour of the decree holder bank on 15.01.2018. Pursuant to the application of the decree-holder bank, the Artha Rin Adalat detained the petitioner for 5(five) months civil imprisonment, accordingly issued warrant of arrest by his order No. 159 dated 04.04.2022.
Being aggrieved thereby the petitioner moved this application before this Court and obtained Rule and order of stay.
Mr. Minhazul Hoque Chowdhury, learned Advocate appearing for the petitioner mainly submits that after issuing certificate of possession, use and sale of the mortgaged property under Section 33(5) of the Ain, 2003, the execution case shall finally be disposed of under Section 33(7) of the Ain, 2009. In view of the said provision of law the learned Advocate further submits that since the execution case has been finally disposed of under Sub-section (9) of Section 33 of the Ain, 2003, the impugned order detaining the petitioner for 5(five) months civil imprisonment and issuance of warrant of arrest by the Artha Rin Adalat is functuous officio.
By referring Section 6(kha) of the Ain, 2003, Mr. Chowdhury next submits that the decree-holder bank without deduction of value of the mortgaged property from the decretal amount filed application before the Artha Rin Adalat for issuing warrant of arrest and the learned Judge of the Artha Rin Adalat without considering the said legal aspect issued the warrant of arrest by the impugned order which is liable to be set aside. Mr. Chowdhury concludes his submission upon an assertion that the instant Rule bears merit should be absolute.
On the other hand, Mr. Muhammad Ali Akkas Chowdhury, learned Advocate appearing for the respondent No. 2, bank submits that the Artha Rin Adalat in considering the provision under Section 28 as well as Sub- section (9) of Section 33 of the Ain, 2003 without disposing of the execution case has issued the impugned warrant of arrest to compel the petitioner for payment of the decretal amount. The learned Advocate further submits that the execution case has been filed by the decree-holder bank on 06.06.2006 and certificate under Section 33(5) was issued by the Artha Rin Adalat on 15.01.2018, in the meantime 6 (six) years from the date of filing execution case has already been elapsed and the Artha Rin Adalat considering the provision of Sections 28 and 33(5) of the Ain, 2003 without disposing the artha jari case issued the warrant of arrest by the impugned order. In view of the above, learned Advocate prays for discharging the Rule with cost.
We have considered the submissions of learned Advocates of both the sides, gone through the application and impugned order.
The moot issue requires to be addressed in the instant Rule is that whether the impugned order dated 04.04.2020 passed by the Artha Rin Adalat detaining the petitioner for 5(five) months civil imprisonment and thereby issued warrant of arrest in accordance with the provisions of the Ain, 2003.
In this regard the moot contention of learned Advocate for the petitioner is that after issuance of the certificate under Section 33(5) of the Ain, 2003 the execution case have finally disposed of under Sub-section (9) of Section 33 of the Ain, 2003 and the Artha Rin Adalat is absolutely functuous officio in passing any order in the said execution case and thus the impugned order is illegal.
In order to appreciate the respective argument so advanced by the contending parties the relevant provision of Section 33 is quoted below for ready reference:
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Thus, from a plain reading of the provision of Section 33 it, however appears that after filing execution case for realization of decretal amount by selling of the mortgaged property. The executing court shall try to sell the property by auction under Sub-section (1) and (4) failing to sell the property then certificate will be issued under Sub-section (5) or (7). Sub- section (9) provides after issuing of the certificate under Sub-section (5) or (7) the execution case shall be finally disposed of subject to provision of Section 28 of the Ain, 2003.
No doubt, in the instant case, the certificate of possession, use and sale of the mortgaged property under Section 33(5) of the Ain, 2003 has been issued by the Artha Rin Adalat in favour of the decree-holder bank. Sub-section (9) of Section 33 of the Ain, 2003 provides when certificate issued under the aforesaid provision of the Ain, 2003, in favour of the decree-holder bank, the execution case shall be finally disposed of subject to the provision of Section 28 of the Ain, 2003. Section 28 of the Ain, 2003 is quoted below for cursory glance;
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Thus, from a plain and combined reading of the quoted Sub-sections (1), (2), (3) and (4) of Section 28 of the Ain, it, however appears that first execution case shall be filed within 1(one) year from the date of decree and if first execution case is filed after expiry of 1(one) year from the date of decree which shall be barred by limitation. However, second or further execution case shall be filed within 1(one) year from the date of rejection or disposal of the first execution case. But, after expiry of 6(six) years from the date of filing first execution case, the second or further execution case is filed which shall be barred by limitation.
The case in hand, it, however appears that the bank obtained decree in the Artha Rin Suit on 04.06.2005 and put the decree in execution on 06.06.2006. The certificate of possession, use and sale of the mortgaged property under Section 33(5) of the Ain, 2003 has been issued by the Executing Court in favour of the decree-holder bank on 15.01.2018 after expiry of 12 years from the date of filling the execution case. Section 28 (4) of the Ain, 2003 provides after expiry of 6(six) years from the date of filling 1st execution case, 2nd or new execution case is barred under the said provision.
Moreover, Sub-section (9) of Section 33 of the Ain, 2003 provides that after issuance of the certificate under Sub-section (5) or (7) the execution case d¡l¡ 28 Hl ¢hd¡e p¡−f−r Eš² ¢X¢œ²S¡l£ j¡jm¡ Q§s¡¿¹ ¢eØf¢š qC−hz The words “d¡l¡ 28 Hl ¢hd¡e p¡−f−r” has inserted in the statute to the effect that the executing court should take cognisance before finally disposal of the execution case that the decree holder shall have an opportunity to file 2nd/new execution case under the provision of Section 28 of the Ain, 2003.
Considering the said provision of law, learned Judge of the Artha Rin Adalat rightly allowed the application of the decree-holder bank filed under Section 34 of the Ain, 2003 detaining the petitioner for 5(five) months civil imprisonment and thereby issued warrant of arrest to compel him for payment of the decretal amount.
Another contention of the learned Advocate for the petitioner is that value of the property has not been adjusted from the decretal amount after issuing of certificate under Section 33(5) of the Ain, 2003. In view of the said context, the order of issuance of warrant is also barred by law. In view of the aforesaid context, it thus appears from the execution application that the decreed-holder bank have yet deducted the value of the mortgaged property in the execution application. At this juncture, we think that the petitioner can approach before the concerned Executing Court for adjustment of value of the mortgaged property from the decretal amount.
Moreover, it appears from record that the petitioner enlarged on bail by this Court without depositing 25% decretal amount as required under Section 34(6) of the Ain, 2003. In this regard, in the case of Rupali Bank Limited-vs-Mahmuda Jaman, reported in 20 ADC(AD) 29 wherein, the
Appellate Division categorically observed:
“Under Section 34(5) of Ain, 2003 the writ petitioners are not entitled to be released on bail unless they deposit 25% of the total decreetal amount and also execute a bond to the effect that they will pay the rest of the decreetal amount within next 90(ninety) days. But in the cases in hand, the High Court Division without complying with aforesaid provision of law, most illegally released the writ-petitioners on bail. In doing so, the High Court Division flouted the categorical provisions of law as stated in Section 34 of the Ain, 2003.”
In the instant case, admittedly the petitioner without complying with
the statutory provision enlarged on bail from this Court. In that count the petitioner has no legal right to enjoy privilege of bail without complying the provision of Section 34(6) of the Ain, 2003.
Considering the stated facts and circumstances of the case and the judgment so referred hereinabove we do not find any legal infirmity in the impugned order.
Accordingly, the Rule is discharged, however, without any order as to costs.
The order of stay granted early stands vacated.
The petitioner is directed to surrender before the concerned Executing Court within 15(fifteen) days from the date of receipt of the copy of this judgment and order failing which the Law Enforcing Agency is further directed to secure arrest of the petitioner.
Communicate a copy of the judgment and order to the concerned respondent forthwith.
Md. Iqbal Kabir, J:
I agree.
M.A. Hossain-B.O.