IN THE SUPREME COURT OF BANGLADESH       HIGH COURT DIVISION

(SPECIAL ORIGINAL JURISDICTION)

Writ Petition No. 1275 of 2024

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 Monaf Khandakar and another

... Petitioners

-Versus-

Government of Bangladesh and others 

... Respondents

Mr. Rowshan Ali, Advocate

... For the petitioners

Mr. Md. Sameer Sattar, Advocate with

Mr. Mahbub Hasan, Advocate

   ... For the respondent No. 3

Heard 24.04.2025, 22.05.2025 and Judgment on: 29.05.2025

 Present:

Justice Sardar Md. Rashed Jahangir                 and

Justice Kazi Waliul Islam

Sardar Md. Rashed Jahangir, J:

The Rule Nisi was issued on an application under article 102

of the Constitution of the People’s Republic of Bangladesh calling upon the respondents to show cause as to why the proceedings of the

Artha Rin Jari Case No. 151 of 2005 (arising out of Artha Rin Case No. 255 of 2003) pending before the Artha Rin Adalat, Chattogram should not be declared to be of without lawful authority and is of no legal effect and as to why the failure of the respondents to exclude petitioners’ land measuring an area of 40(forty) decimals under R.S. Khatian No. 834/1, corresponding to R.S. Dag No. 4027 from the Deed of Mortgage No. 6426 dated 12.11.1994 shall not be declared to be of 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.

Brief facts for disposal of the Rule are that the petitioners claimed themselves having interest in some property on the basis of their own. It is further stated that the respondent Nos. 3 and 4 being emboldened by the judgment and decree dated 01.04.2004 passed by the respondent No. 2 in Artha Rin Suit No. 255 of 2003 and in pursuant to Artha Rin Jari Case No. 151 of 2005 threatened the petitioners to evict from their own property measuring an area of 40(forty) decimals described in the Deed of Mortgage No. 6426 dated 12.11.1994. The further fact is that the respondent No. 3-the City Bank Limited filed Artha Rin Suit No. 255 of 2003 before the Artha Rin Adalat, Chattogram for recovery of outstanding dues of an amount of Tk.88,79,209/- against the present respondent Nos. 5-7; ultimately, the suit was decreed. The bank filed Artha Jari Case No. 151 of 2005 for executing the decree passed in Artha Rin Suit No. 255 of 2003.

Ultimately, in the execution case, upon an application of the decree-holder-bank, a certificate under section 33(7) was issued on 30.08.2018 and thereafter under section 33(7Ka) writ of possession was  issued  to  handover  the  actually  possession  in  favour  of  the decree-holder-bank on 29.09.2022. Thereafter, on 30.10.2022, third- party present petitioners filed an application before the Artha Rin Adalat, Chattogram in Artha Jari Case No. 151 of 2005 under section 57 of  the  Artha  Rin  Adalat  Ain,  2003  stating  inter-alia that  the petitioners are the owners of 40(forty) decimals of land. Neither they mortgaged the said property nor there was any reason to mortgage the property in favour of the bank, thus, the property cannot be attached/sold/ transferred in pursuant to Artha Jari Case No. 151 of 2005 and thereby sought for setting aside the order dated 30.08.2018, issuance  of  certificate  under  section  33(7)  and  order  dated 29.09.2022,  the  order  of  handing  over  possession  under  section 33(7Ka) of the Artha Rin Adalat Ain, 2003. The Artha Rin Adalat, Chattogram  upon  hearing  the  parties  on  19.01.2023  passed  a conditional order  keeping  the hearing of  the  application  pending directing  that  the  application  shall  be  heard  further  subject  to furnishing bond by the petitioners under section 32 of the Artha Rin

It is to be mentioned here that earlier the petitioners filed another writ petition being No. 4929 of 2023 (see order No. 26 dated 21.05.2023, page 63 of the writ petition), but nowhere of the writ petition the petitioners made any statement regarding the aforesaid writ petition.

Mr.  Rowshan  Ali,  learned  Advocate  for  the  petitioners submits  that  the  petitioners  did  not  mortgage  their  property measuring an area of 40 decimals to the bank as collateral security against the sanctioned loan to the respondent Nos. 4-7 and there was no reason to include the petitioners’ property in the schedule of the decree execution case. He further submits that since there is a fraud upon the petitioners thus, they are not required to deposit the security or bond under sub-section (2) of section 32 of the Artha Rin Adalat Ain, 2003. In support of the submission, he cited the judgment of Mollah  Shahidul  Islam  Vs.  Md.  Monsur  Rahman  and  others, reported in 57 DLR 164.

In course of argument, learned Advocate Mr. Rowshan Ali for the  petitioners  by  filing  a  voluminous  supplementary  affidavit containing  various  deeds  and  other  documents,  together  with  an application for issuance of Supplementary Rule.

On  the  other  hand,  Mr.  Sameer  Sattar,  learned  Advocate appearing with Mr. Mahbub Hasan, learned Advocate submits that under the Artha Rin Adalat Ain, 2003 there is no scope for the third party  to  invoke  the  Court’s  jurisdiction  other  than  under the provision of section 32 of the Ain, 2003 and under section 32(2) of the Ain, 2003, it is a mandatory requirement that the third party ought to deposit equivalent to 10% of the outstanding dues or an equivalent  bond  together  with  the  application  purportedly  filed invoking the aforementioned provision; in support of his submission, he relied upon the judgment of the Md. Humayun Kabir Vs. Sonali Bank Limited and others reported in 9ADC 335 (Civil Petition For Leave To Appeal No. 1700 of 2009) and thereby submits that there is no scope for the Artha Rin Adalat to entertain any of the objection of the thirty party without depositing 10% of the decreetal amount or equivalent  bond  and  the  Artha  Rin  Adalat,  Chattogram  did  not commit any illegality in directing the petitioner to deposit 10% of the decreetal amount or to furnish a equivalent bond and as such, he prayed for discharging the Rule.

Heard learned Advocates of both the parties, perused the writ petition together with the annexures, supplementary affidavit and the application  for  issuance  of  the  Supplementary  Rule  and  the application for discharging the Rule filed on behalf of the respondent No. 3-bank.

It appears that the petitioners being third party, i.e. neither the borrower nor mortgagor/guarantor of the sanctioned loan, subject matter of the Artha Execution Case No. 151 of 2005 (arising out of Artha Rin Suit No. 255 of 2003) of the Court of the Artha Rin Adalat,  Chattogram  moved  before  this  Court  challenging  the proceeding of Artha Rin Execution Case No. 151 of 2005 of the Artha Rin Adalat, Chattogram stating, inter alia that they are not borrowers or guarantors or mortgagors of the loan-in-question and thus,  their  property  cannot  be  included  into  the  schedule  of  the aforesaid artharin suit or artharin execution case and as such, cannot be the subject matter of any certificate issued under section 33(7) of the Artha Rin Adalat Ain, 2003.

The petitioners by filing the application under section 57 of

the  Artha  Rin  Ain,  2003  in  the  Artha  Rin  Adalat,  Chattogram challenged in particular, the order of issuance of certificate under

section 33(7) of the Artha Rin Adalat Ain, 2003 together with an

order of issuance of writ of possession under section 33(7Ka) of the

Artha Rin Adalat Ain, 2003 in favour of decree-debtor-bank and

now are contending that they are not liable to deposit 10% of the decreetal amount or equivalent bond as per stipulation of section

32(2) of the Artha Rin Adalat Ain, 2003.

In the context of above, keeping the submission of learned Advocate in mind, we have examined the various provisions of the

Artha Rin Adalat Ain, 2003.

In the preamble of the Ain it is stated that “B¢bÑL fË¢aù¡e LaѪL GZ Bc¡−ul SeÉ fËQ¢ma BC−el A¢dLal pw−n¡de J pwqaLlZL−Òf fËZ£a BCez

®k−qa¥ B¢bÑL fË¢aù¡e LaѪL fËcš GZ Bc¡−ul SeÉ fËQ¢ma BC−el A¢dLal pw−n¡de J pwqaLlZ fË−u¡Se£u; ®p−qa¥ Hacà¡l¡ ¢eðl©f BCe Ll¡ qCm:-” (emphasis has been given in the underlined). The preamble indicates that the Artha Rin Adalat Ain, 2003 is an amended and consolidated provisions for realization of the loan given by the financial institution. Section 3 of the Artha Rin Adalat Ain provides that notwithstanding anything contained in any other law, the provisions of  this  Ain  shall  prevail.  By  giving  an  overriding  effect,  it  is provided that the suit for realization of given loan shall be instituted before the special Court established under section 4 of the Artha Rin Adalat Ain, 2003 through Gazette Notification and section 5 of the Ain it is also stipulated that the all disputes relating to realization of loan  shall  be  decided  and  disposed  of  exclusively  in  the  Court established  under  section  4  of  the  Ain.  All  this  provisions contemplates, Artha Rin Adalat Ain is a special law through which

special Courts are established and the Courts are to follow special provisions within the contemplation and permission of the Ain itself. Under section 6(5) of the Artha Rin Adalat Ain, 2003, it is further stipulated that the artha rin suit can be filed impleading the specified defendants namely, the principal debtor, the third party mortgagor, and  the  third  party  guarantor,  no  other  persons  except  the aforemention can be a party to an Artha Rin Adalat Suit. There is no scope in the Artha Rin Adalat Ain, to implead persons other than the aforesaid categories, in other words, no other persons can invoke the jurisdiction of the Artha Rin Adalat Ain other than the aforesaid, save and except within the scope of specific provision of section 32 of the Artha Rin Adalat Ain, 2003.

Meaning  thereby,  the  aggrieved  persons  other  than  the specified  persons  of  aforesaid  3(three)  categories  can  seek  any

remedy before the Artha Rin Adalat under the provision of section 32 of Artha Rin Adalat Ain, 2003.

Under section 41 of the Artha Rin Adalat Ain, 2003 the parties to the suit on being aggrieved by any order or decree of the Artha Rin Adalat Ain may prefer an appeal before the competent Court by depositing  50%  of  the  decreetal  amount.  This  provision  for  the appeal is not available to any third party. In case of an ex-parte decree, the defendants of the suit of the aforesaid 3(three) categories may file an application for setting aside the ex-parte decree under section  19(2)  within  30(thirty)  days  of passing of  the decree  by depositing  10%  of  the  decreetal  amount.  From  the  provision aforementioned,  it  further  transpires  that  the  third  party  is  not entitled to seek remedy under section 19 of the Artha Rin Adalat Ain, 2003.

Section 32 of the Artha Rin Adalat Ain provides that a third party claiming interest may file/submit his objection/claim against the decree within 30(thirty) days in an execution proceeding arising out of a judgment and decree of the Artha Rin Adalat in accordance with the provisions of the Code of Civil Procedure upon depositing a security equivalent to 10% of the decreetal amount or any equivalent bond into the Court. Section 26 of the Artha Rin Adalat Ain, 2003 provides that the procedure and provisions for execution of money decree  provided  in  the  Code  of  Civil  Procedure,  1908  shall  be applicable in the execution proceeding under the Artha Rin Adalat Ain,  provided  further  that  the  provisions  of  the  Code  of  Civil Procedure shall not be inconsistent with the provisions of the Artha Rin Adalat Ain, 2003.

Meaning thereby, section 26 of the Artha Rin Adalat Ain, has given  mandate  to  invoke  the  provisions  of  the  Code  of  Civil Procedure in the proceeding of execution case filed to execute the decree of the Artha Rin Adalat. From a combind bare reading of the provisions of sections 26 and 32, it further appears that when there is specific  provision  under  the  Artha  Rin  Adalat  providing  remedy under section 32 of the Ain in an execution proceeding of Artha Rin Adalat, no provisions of the Code of Civil Procedure inconsistent with  the  provisions  of  the  Artha  Rin  Adalat  Ain,  2003  can  be adopted in the proceeding of any Artha Rin Jari Case.

Under the Code of Civil Procedure read with sections 26 and 32 of the Artha Rin Adalat Ain, 2003, the third party may invoke the provisions of Order XXI, rule 58, 89, 90, 100 and 101; and even the provision  of  rule  103  of  Order  XXI  of  the  Code,  but  all  those remedies  provided  in  the  aforesaid  provisions  can  be  sought  for through the gate way of section 32 of the Artha Rin Adalat Ain, 2003.

In the case of Md. Humayun Kabir Vs. Sonali Bank Limited and others, reported in 9 ADC 335, the Apex Court categorically held that:

“Artha Rin Adalat Ain, 2003 is a special law and section 32 of this Ain has provided special procedure for raising any claim as per provisions of the Code of Civil Procedure. According to section 32 of the Artha Rin Adalat Ain, 2003 a third party claimant can raise any claim as to any mortgaged or attached property in any execution case as per provision of the Code of Civil Procedure on depositing security equivalent to 10% of the decretal amount. So any application under Order 21, Rule 58 of the Code of Civil Procedure also is to be filed in any Artha Execution Case in accordance with this  section  32  of  the  Artha  Rin  Adalat  Ain,  2003. Admittedly this petitioner did not deposit the security as per section 32(2) of the Artha Rin Adalat Ain, 2003 for consideration of his application under Order 21, Rule 58 of the Code of Civil Procedure. The executing Artha Rin Adalat, therefore, by the impugned order rightly rejected  the  said  application  on  the  ground  that  no security as per section 32(2) of the Artha Rin Adalat Ain, 2003 was deposited.”

Although learned Advocate for the petitioner cited a judgment reported in 57 DLR 164, wherein it has been held that no deposit is required  under  section  32  when  the  question  of  fraud  has  been alleged, but in view of the judgment of the Apex Court reported in 9 ADC 335, we are enable to accept the view expressed in 57 DLR.

Moreover, in the case of Shamsuddin Ahmed Vs. City Bank Limited and others, reported in 18 BLC 30, it is categorically held that  the  provision  of  section  57  of  the  Ain  is  not  an  enabling provision for setting aside the sale or issuance of certificate under section 33(7), as the case may be (because under the certificate of section  33(7) ownership  has been transferred),  in our  considered view the aforesaid proposition settled in the case of Shamsuddin Ahmed  is  solely  applicable  in  the  instant  case,  because  the petitioners tried to invoke the jurisdiction of the Artha Rin Adalat for

setting aside the certificate issued under section 33(7) of the Artha Rin Adalat Ain, 2003 by filing an application.

As  we  already  found  that  whatever  the  claim  is  under  an application of any third party, that must come within the gateway of section  32  of  the  Artha  Rin  Adalat  Ain,  2003  thus,  without complying with the stipulation of section 32 of the Ain, 2003, no application of a third party’s claim can be entertained.

Under the case in hand, the Artha Rin Adalat, Chattogram did not commit any illegality in directing the petitioners to deposit the security amount or equivalent bond within the stipulation of section 32, of the Ain, 2003.

In the premise above, we do not find any substance in the

Rule.

Accordingly, the Rule is discharged without any order as to

cost.

In  the  premise  above,  we  find  no  reason  to  issue  any Supplementary Rule to interfere unwarrantedly into the proceeding of the Artha Rin Execution Case filed to execute a decree of the Artha Rin Adalat.

Accordingly, the said application is rejected.

However, the petitioners may proceed to claim hearing against the  proceeding  of  decree  execution  upon  depositing  a  security equivalent to 10% of the decreetal amount or any equivalent bond in the Artha Rin Adalat as per it’s direction, if they are so advised.

Communicate the judgment and order at once.

Kazi Waliul Islam, J:

I agree.

Obaidul Hasan/B.O.