IN THE SUPREME COURT OF BANGLADESH HIGH COURT DIVISION

(CIVIL REVISIONAL JURISDICTION)

Present:

Mr. Justice Md. Mozibur Rahman Miah                             and

 [

Mr. Justice Md. Bashir Ullah

Civil Revision No. 2329 of 1998

  In the matter of:

An  application  under  Section  115(1)  of  the  Code  of            Civil Procedure, 1908

                   And

In the matter of: 

 Md. Abdul Mannan and others

                                                    --- 3rd Party-Petitioners.

-Versus-

  Rupali Bank Limited and others

                               --- Plaintiffs-Opposite parties.

None appears

---For the petitioners.

  Mr. Md. Imam Hasan, Advocate

               --- For the opposite party No. 1

Heard on 09.12.2024 Judgment on: 10.12.2024

Md. Bashir Ullah, J.

 At the instance of the 3rd party in Mortgage Execution Case No. 13 of 1996, this Rule was issued calling upon the opposite party no. 1 to show cause as to why the order no. 17 dated 01.06.1998 passed by the then  learned  Sub-ordinate  Judge,  Artha  Rin  Adalat,  First  Court, Chattogram should not be set aside and/or such other or further order or orders passed as to this Court may seem fit and proper.

At the time of issuance of the Rule, the proceeding of Mortgage Execution  Case  No.  13  of  1996,  pending  in  the  then  learned  Sub-

ordinate Judge, Arthar Rin Adalat, First Court, Chattogram was stayed for 02(two) months, which was subsequently extended from time to time and it was lastly extended on 15.03.1999 till disposal of the Rule. 

The salient facts, relevant for the disposal of the Rule are:

On  17.4.1993,  the  opposite  party  no.1  as  plaintiff  instituted Mortgage Suit No. 25 of 1993 in the 1st Artha Rin Adalat, Chattogram against the opposite party nos. 2 to 4 for realisation of money. The case of  the  plaintiff-opposite  party  no.  1  in  short  is  that  the  defendant- opposite party no. 2 is a business concern and the defendant-opposite party  no.3  is  the  owner  of  defendant-opposite  party  no.  2.  The defendant-opposite  party  no.  2  opened  a  current  account  with  the plaintiff  bank  and  subsequently  took  loan  of  Tk.  2,00,000/-  on 15.02.1984 for the business of cement and C.I. sheet by mortgaging immovable property. The defendants from time to time repaid some amount of money however the liabilities stood at Tk. 8,65,965.70 as of 31.12.1992 and the defendant admitted the above dues but failed to pay the dues on repeated requests hence the plaintiff-opposite party no. 1 was constrained to file the Mortgage suit.

The suit was decreed in preliminary form by judgment and order dated 02.09.1993 and the final decree was passed on 08.10.1994. After that, the decree-holder-opposite party no. 1 on l1.01.1996 filed Mortgage Execution  Case  No.  13  of  1996  for  execution  of  the  decree. Subsequently, the court passed an order to publish a proclamation for sale  in  the  daily  newspaper.  Accordingly,  the  auction  notice  was published on 26.04.1998 in ‘the Daily Azadi’. The petitioners came to know the above mortgage execution case from the auction notice and then they filed an application under Order 21 Rule 58 read with section 151 of the Code of Civil Procedure on 01.06.1998 in the First Artha Rin Adalat, Chattogram to release the scheduled land from attachment.

The case of the 3rd Party-petitioners is that the defendant-opposite party no.4 sold the suit land measuring 5 decimals to one, Mohammad Fazlul Hoque Chowdhury under R.S. Plot No. 498 and 499 by deed no. 1385  dated  07.03.1994.  Mohammad  Fazlul  Hoque  Chowdhury mortgaged the same to National Credit and Commerce Bank Limited and took a loan of Taka 25,00,000/-. Fazlul Hoque Chowdhury could not pay  the  loan  and  as  such  he  sold  the schedule land  along with  the building to the petitioners by registered deed no. 4481 on 30.06.1997 with the approval of National Credit and Commerce Bank Limited. Thus the petitioners are the owners and possessors of the schedule land and their names have been recorded in the B.S. Khatian through mutation and paid rent to the government up to the current year. It has further been stated that, the defendant-opposite party no. 4 has no manner of right, title, interest and possession of the schedule land. The petitioners have a 6-storey commercial building named ‘Annanda  Hotel’ in the scheduled land. If the suit land is sold in auction without determination of right, title in that case the petitioners shall suffer irreparable loss and injury.

The petitioners also filed an application to stay further proceeding of the execution case. The executing court heard the applications and after hearing both the parties rejected both the applications by order no. 17 dated 01.06.1998.

Being aggrieved by and dissatisfied with the order no. 17 dated 01.06.1998  passed  by  the  First  Artha  Rin  Adalat,  Chattogram  in Mortgage Execution Case No. 13 of 1996, the petitioner preferred the instant Civil Revision and obtained Rule and order of stay.

It has been submitted in the revisional application that in Order 21,  Rule  58 of  the Code  of  Civil  Procedure  provides  that when an objection  has  been  raised  regarding  any  property  attached  in  an execution of a decree on the ground that such property is not liable to attachment, the court shall proceed to investigate the claim or objection with  the  like  power  as  regards  the  examination  of  the  claimant  or objector, and in all other aspects, as if he was a party to the suit but in the present case the learned Sub-ordinate Judge committed an error of law resulting in an error in the decision occasioning failure of justice in rejecting the application without any investigation.

It is further stated that the finding of the court below is based on no evidence and it is absolutely based on conjecture and surmises,

None  appeared  for  the  petitioner  to  press  the  rule  though  the matter  has  been  appearing  in  the  list  with  the  name  of  the  learned counsels for the parties.

Mr. Md. Imam Hasan, learned Advocate appearing on behalf of the opposite party no. 1 contends that the application filed by the third party under Order XXI, Rule 58 of the Code of Civil Procedure in a mortgage execution case is not maintainable. He further contends that the petitioners in connivance with the judgment debtors filed the said Miscellaneous  Case to delay  the disposal  of  the  execution  case  and recovery of public money.

Mr. Hasan contends that Order XXI, Rule 58 of the Code of Civil Procedure has no manner of application where the property is directed to be sold under a mortgage decree, and the said Rule is applicable only where the property has been attached for the purpose of satisfying any general  money  claim.  He  submits  that  there  is  no  illegality  in  the impugned order. He finally prays for discharging the Rule.

In support of his contention learned Advocate referred to the case Yunus Mia (Md) and others Vs. Bangladesh Krishi Bank, reported in 54 DLR 123, M.S. Doraisami Iyer Vs. A.R. Arunachalam Chettiar and others, reported in AIR 1991 Madras, 275. 

We have heard the submissions of the learned Advocate for the opposite party no. 1, perused the Civil Revision, impugned order passed by the trial Court, and other materials on record.

 The record shows that the petitioners filed some documents with the application filed under Order XXI, Rule 58 of the Code of Civil Procedure but the executing Court did not examine those documents and rejected  the  application  without  assigning  any  reason  and  without investigating the claim made by the petitioners. The provision of Order XXI, Rule 58 of the Code of Civil Procedure is reproduced below for our convenience:

“58.(1)  Where  any  claim  is  preferred  to,  or  any objection is made to the attachment of, any property attached in execution of a decree on the ground that such property is not liable to such attachment, the Court  shall  proceed  to  investigate  the  claim  or objection  with  the  like  power  as  regards  the examination of the claimant or objector, and in all other respects as if he was a party to the suit:

Provided  that  no  such  investigation  shall  be made where the Court considers that the claim or objection was designedly or unnecessarily delayed.

(2)  Where  the  property  to  which  the  claim  or objection  applies has been  advertised  for  sale, the Court ordering the sale may postpone it pending the investigation of the claim or objection.”

Order XXI, Rules 58, 59, 60 and 61 of the Civil Procedure Code provides that if in the execution of a decree any property is attached any person interested may raise the objection that such property is not liable to attachment. After such a claim or objection is raised, the Court should investigate and adjudicate upon the claim or objection.

In this regard, reliance may be placed in the case of Foyez Ahmed and  others  Vs.  Uttara  Bank  Limited  and  others,  reported  in  55 DLR(2003)635 wherein this Court observed:

“Where  a  third  party  has  claimed  property  under attachment  in  execution  of  a  decree  and  filed  an application under the aforesaid provision of law, then

it is the duty of the Court to investigate the claim and

the executing Court should not reject the application

without assigning any reason.”

In  such  a  view  of  the  matter,  we  are  of  the opinion that  the

executing Court has committed error of law in rejecting the application

simply mentioning that, “ö¢em¡jz AcÉ ®hm¡ 12 O¢VL¡u ¢em¡j L¡kÑœ²j f¢lQ¡¢ma qC−h j−jÑ hý f§−hÑC f¢œL¡u ¢h‘¢ç fÐL¡n œ²−j ¢em¡−jl A−fr¡u B−Rz ¢X¢œ²c¡l hÉ¡w−Ll

hš²hÉ ö¢em¡jz c¡¢uL fr Hhw ¢X¢œ²c¡l Hl ü£L«aj−a c¡u£L ¢LR¤ V¡L¡ Down payment

L¢lu¡−Re Hhw c¡u£−Ll fÐc¢nÑa j−aC håL£ S¢j ¢em¡j qC−hz c¡¢uL ®k c¡N håL ®cu ®p

c¡−Nl A¢h−l¡d£u h¡ håL£ pÇf¢šl h¡C−ll B−l¡ S¢j B−Rz c¡¢uL e¤l¦æh£l j¡¢mL¡e¡d£e

pÇf¢š ¢em¡j ¢hœ²u L¢lh¡l E−cÉ¡N NËqZ L¢lu¡−R g−m j¤m ¢X¢œ² J S¡l£ j¡jm¡−L qa¡n

Ll¡l E−Ÿ−nÉ Aœ ¢jp −j¡LŸj¡ B¢eaz Hja¡hÙÛ¡u Aœ ¢jp ®j¡LŸj¡ M¡¢lS Ll¡ ®Nmz”

The said order appears as merely a non-speaking order and the same

cannot be maintained in the eye of law. The petitioners have the right to

know as to why his application has been rejected. Since, the impugned

order is totally non-speaking one, the same deserves to be interfered with

by this Court. The impugned order as it transpires does not lead to any

lawful satisfaction.

We also get support from the decision passed in Arab Bangladesh

Bank Ltd. Vs. Janata Bank and others, reported in 11 BLC(2006)186

wherein this Court held:

“Rule 58 of Order XXI of the Code of Civil

Procedure  requires  an  executing  Court  to

investigate  the  claim  or  objection  of  an

objector  as  if  he  was  a  party  to  suit.  Such

investigation is dispensed with only when the court  considers  the  claim  or  objection  was designedly or unnecessarily delayed...

After omission of section 47 from the Code of Civil Procedure, provision of Order XXI, Rule 58 of the Code of Civil Procedure is now left only for consideration and examination of all claims  and/or  objections  of  a  third  party  in respect of a property attached in execution of a decree. It is also the duty of an executing Court to decide and adjudicate finally, all questions that  may  arise  relating  to  execution  of  a decree.”

Given  the  above  facts  and  circumstances  as  well  as  the  ratio passed by this Court, we are of the view that the execution court failed to apply its judicial mind and hence the impugned order is found to be not sustainable in law and the same is liable to be set aside.

We find substance in the Rule.

Accordingly, the rule is made absolute, however without any order as to cost. 

The  impugned  order  no.  17  dated  01.06.1998  passed  by  the learned Sub-ordinate Judge, Artha Rin Adalat, First Court, Chattogram in Mortgage Execution Case No. 13 of 1996 is hereby set aside.

 The order of stay granted at the time of issuance of the rule stands recalled and vacated.

Since it is a very old case, the executing court is hereby directed to proceed with the execution case and to dispose of the application under Order XXI, Rule 58 in accordance with law on merit as expeditiously as possible, preferably within 02(two) months from the date of receipt of the copy of this order.

Let  a  copy  of  this  judgment  be  communicated  to  the  court concerned forthwith.

Md. Mozibur Rahman Miah, J.

I agree.

Md. Ariful Islam Khan Bench Officer