IN THE SUPREME COURT OF BANGLADESH       HIGH COURT DIVISION

(SPECIAL ORIGINAL JURISDICTION)

Writ Petition No. 6785 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:

Md. Akkas Ali alias Mohammad Ali

                                               ... Petitioner

-Versus-

The Artha Rin  Adalat No. 2, Dhaka and another 

... Respondents

Mr. Mohammad Ali, Advocate with

Mr. Md. Abdul Alim, Advocate

          ... For the petitioner

Mr. Md. Nasir Shikder, Advocate

... For the respondent No. 2

Heard and Judgment on: 22.05.2025

 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 order No. 15 dated 28.03.2024 passed by the Judge, Artha Rin Adalat No. 2, Dhaka in Artha Jari  Case No. 435 of 2020, allowing the respondent’s application awarding civil confinement for a period of 6(six) months against the petitioner

(Annexure-‘E’) should not be declared to have been passed without lawful authority and to be of no legal effect and/or pass such other or further order or orders as to this Court may seem fit and proper.

In pursuant to a judgment and decree dated 10.02.2020 passed in Artha Rin Suit No. 454 of 2018, the decree-holder-respondent filed Artha Jari Case No.  435 of 2020 before the respondent  No.  1  for realization of the decreetal amount with interest. From the application under Order XXI, rule 11 for execution of decree (Annexure-‘B’), it appears that the loan was unsecured and no property was mortgaged on behalf of the judgment-debtor and as such, on 03.02.2021, respondent No. 2 filed an application under section 34(1) of the Artha Rin Adalat Ain, 2003 and the Adalat after consideration of the application and upon  hearing  the  decree-holder  passed  an  order  awarding  civil imprisonment to the judgment-debtor No. 1, Jalal for a period of 6(six) months.  Despite  passing  the  civil  imprisonment  order  neither  the borrower nor the guarantors came forward to make payment of the outstanding dues of decree-holder. Thus, on 05.09.2023, the respondent No.  2  filed  another  application  sought  for  an  order  of  civil imprisonment  upon  the  judgment-debtor  Nos.  2  and  3,  who  are guarantors of the unsecured loan and on the same day, the Adalat- respondent  No.  1  allowed  the  application  awarding  the  civil confinement for 6(six) months upon the petitioner, Md. Akkas Ali alias Mohammad Ali along with Mohammad Ferdous Hossain under section 34(1) of the Artha Rin Adalat Ain, 2003. On 02.10.2023, the judgment- debtor No. 2, Md. Akkas Ali alias Mohammad Ali was produced before the Court after securing arrest and on the said date, the judgment-debtor (petitioner  herein)  by  depositing  25%  of  the  outstanding  dues  i.e. Tk.1,89,385/-  sought  for  releasing  from  the  civil  confinement  and thereafter, upon the order of the Court and upon furnishing bond he was released, with a stipulation that he shall make payment of the remaining outstanding dues within 90(ninety) days from the date as per mandate of section 34(6) of the Artha Rin Adalat Ain, 2003. Thereafter, on 09.10.2023, the judgment-debtor No. 3, Mohammed Ferdous Hossain also  arrested  and  produced  before  the  Court  and  thereafter,  also released upon depositing Tk.1,89,385/- (25% of the total outstanding dues).  On  28.03.2024,  respondent  No.  2  filed  an  application purportedly under sub-section (7) of section 34 of the Artha Rin Adalat Ain, 2003 sought for an order of civil imprisonment afresh upon the judgment-debtor No. 2-petitioner, on the averment that the judgment- debtor No. 2 on 02.10.2023 got release from the Court upon depositing 25% of the total outstanding dues with a statutory condition that within 90(ninety) days he would make payment of the remaining dues, but more than 90(ninety) days time has been elapsed but the judgment- debtor No. 2 did not make such payment.

Upon consideration of the said application the respondent No. 1 passed an order of civil confinement afresh under 34(7) of the Artha

Rin Adalat Ain, 2003.

Challenging the aforesaid order the judgment-debtor No. 2 filed this writ petition and obtained the Rule.

Mr. Md. Abdul Alim, learned Advocate appearing on behalf of Mr. Mohammad Ali, learned Advocate for the petitioner submits that the  petitioner  on  02.10.2023  deposited  in  the  Court  an  amount  of Tk.1,89,385/- and he further submits that although the order of civil confinement  has  been  passed  against  the  borrower-judgment-debtor No. 1 but he was not arrested till date. He next submits that under the proviso to sub-section (5) of section 6, it is stipulated that in realizing the  dues  through  decree  execution  case,  firstly  the  property  of  the borrower is to be disposed of thereafter, the property of third party mortgagor and thereafter the property of third party guarantor can be taken into consideration.

Meaning thereby, the realization process should be proceeded firstly  against  borrower  and  thereafter  the  guarantor.  Since,  the respondent-bank  did  not  take  any  initiative  to  secure  the  arrest  of borrower-judgment-debtor No. 1 thus, the civil confinement order of the petitioner upon it’s application cannot be sustainable. He further submits that the judgment-debtor No. 3 is the full-brother of borrower,

and according to learned Advocate for the petitioner, his responsibility is sometimes greater than the petitioner and in view of above, he prayed

for setting aside the order of civil imprisonment dated 28.03.2024.

On the other hand, Mr. Md. Nasir Shikder, learned Advocate for the respondent No. 2 submits that having regard to the application of execution, it transpires that no property has been mortgaged on behalf of  the  judgment-debtors  and  as  such,  the  respondent-bank  has  no alternative  but  to  file  the  application  for  getting  the  order  of  civil confinement to compel the judgment-debtors to make payment of the outstanding  dues  of  decree-holder-respondent  and  the  Court  after considering the provision of section 34 of the Artha Rin Adalat Ain, 2003 duly passed the order of civil confinement and in view of above, he prayed for discharging the Rule.

Heard learned Advocate of both the parties, perused the writ petition together with the annexures.

It appears that, on 05.09.2023 an order of civil confinement was passed  against  the  petitioner-judgment-debtor  No.  2,  who  is  the guarantor of an unsecured loan and thereafter, on 02.10.2023, while he was produced before the Court after securing arrest, he got release upon depositing 25% of the outstanding dues.

Sub-section (6) of section 34 of the Artha Rin Adalat Ain, 2003 provides  that  if  the  judgment-debtor  upon  depositing  25%  of  the

outstanding dues furnished a bond in the Court that he shall make payment  of  the  remaining  amount  within  90(ninety)  days  then  the

Court may release him from the civil confinement and after expiry of the aforesaid 90(ninety) days, if the aforesaid judgment-debtor failed to make payment the remaining dues, then the Court has no option but to invoke the authority of sub-section (7) of the section 34 passing an order of civil confinement afresh and in the instant case since  the judgment-debtor  No.  2  failed  to  make  payment  of  the  remaining amount within the stipulated 90(ninety) days from his earlier release on 02.10.2023, thus, the Artha Rin Adalat did not make any illegality in passing  a  further  order  of  civil  confinement  afresh  on  28.03.2024 against the judgment-debtor-petitioner.

So far the contention of learned Advocate for the petitioner that in view of sub-section (5) of section 6 of the Artha Rin Adalat Ain, 2003, the Artha Rin Adalat or the respondent ought to have proceeded firstly against the borrower and thereafter the mortgagor and thereafter against the guarantor.

We have examined the aforesaid provision of sub-section (5) of section 6 of the Ain, 2003, we do not find any legal substance in the submission  of  learned  Advocate  for  the  petitioner,  because,  the aforesaid provision only provides that in the process of realization of decreetal  amount  in  decree  execution  case,  the  property  of  the

judgment-debtor-borrower  is  to  be  disposed  of  firstly  and

consequentially thereafter the property of third party mortgagor and thereafter the third party guarantor. Admittedly, no property has been mortgaged and the loan is an unsecured one thus, the provision of sub- section (5) of section 6 of the Ain, 2003 has no relevancy in the instant writ petition at all.

In the premise above, we find no substance in the Rule.

 Accordingly, the Rule is discharged without any order as to cost.

The order of stay granted earlier at the time of issuance of the Rule is hereby recalled.

 Communicate the judgment and order at once.

Kazi Waliul Islam, J:

I agree.

Obaidul Hasan/B.O.