(Special Original Jurisdiction)
Md Miftah Uddin
Choudhury J
Md Mozibur Rahman
Miah J
Abdul Hafiz Salawat …………….
……………………..Petitioner
vs
First Court of Artha Rin Adalat, Chattogram and others …………
………… Respondents”
Judgment
November 25th 2015
Artha Rin Adalat Ain (VIII of 2003)
Section 34(10)
Since the provision of sub-section 10 of Section 34 of the Ain empower the Adalat to issue warrant of arrest as well as to detain the judgement-debtor in default to re-paying the decreetal dues to the creditor bank, no illegality has been committed to issue warrant of arrest against the petitioner to compel him in repaying the decreetal dues.
Since indubitably, the petitioner being a judgment-debtor so the learned Judge of the Artha Rin Adalat has rightly passed the impugned order issuing, warrant of arrest against the petitioner. So the alleged proposition so taken by the learned counsel for the petitioner that, since the petitioner is not a loanee so he can neither be arrested not be detain in civil prison compelling him to repay the decreetal dues of principal judgment-debtor can in no way be sustained in law. .. …. (16 & 14)
Artha Rin Adalat Ain (VIII of 2003)
Section 34(9)(10)
Since the provision so enunciated in Section 34(10) clearly provides that, if it is not possible to hold a single auction sale under Section 34(9) of the Ain in that case, the judgment-debtors can be arrested and put in Civil Prison. While legislate, sub-section 10 of Section 34, the legislature very consciously foresaw that if there remains no property of the borrower to mortgage with the Creditor-bank in such a posture, Court can clothe with the authority to issue warrant of arrest and detain the judgment-debtors in Civil Prison to compel the judgment-debtors to repay the decreetal dues. On going through the provision of Section 34 we also find that, the legislature does not differentiate the borrower and guarantor in the event of issuing warrant of arrest and to detain in Civil Prison rather in every places in section 34 of ‘the Ain’ it denotes the word “judgment-debtor.” (13)
Md Ismail Miah with Md Mamunur Rashid, Advocates-For the Respondent No.2.
SM Moniruzzaman, DAG, with Mosammat Khairun Nessa, AAG and Suchira Hossain, AAG-For the Respondents.
Judgment
Md Mozibur Rahman Miah J : By filing an application under Article 102 of the Constitution, the petitioner has challenged the propriety of the order dated 12-3-2012 passed by the learned Judge of the Artha Rin Adalat, 1st Court, Chattogram, in Artha Rin Execution Case No. 17 of 2011 issuing warrant of arrest against him claiming to declare it to have been passed without lawful authority and is of no legal effect and/ or such other or further order or orders passed as to this Court may seem fit and proper.
2. At the time of issuance of the Rule the operation of the impugned order was also stayed till disposal of the Rule.
3. The relevant facts as has been figured in the writ petition in short are that;
The petitioner claimed to be a guarantor of a loan so availed by the borrower, named ASM Golam Kibria made as defendant No.2 in Artha Rin Suit No. 34 of 2007 as a security in repaying the said loan. Since the said borrower failed to repay the loan so availed from respondent No.3-bank, it ultimately filed Artha Rin Suit being No. 34 of 2007 before the Artha Rin Adalat, 1st Court, Chittagong, for realisation of its outstanding dues to the tune of Taka 28,19,846.05 where the petitioner was impleaded as defendant No. 3. The said suit was eventually decreed on contest against the defendants by Judgement and deerce dated 3-10-2010.
4. Since the defendants failed to pay the decreetal amount in terms of the Judgement, the decree holder bank then put the said decree in execution by filing Execution Case being No. 17 of 2011 claiming Taka 40,83,099.31 wherein this petitioner was also made as Judgement debtor No.3.
(To be continued)
5. In course of the said Execution proceedings, the judgment-debtors entered their appearance. As no property had been mortgaged with the decreetal bank, when the loan was sanctioned, the decree holder on 15-5-2011 filed an application under Section 34(1) of ‘Artha Rin Adalat Ain’ 2003 (shortly, ‘the Ain’) praying for issuing warrant of arrest against the judgment-debtors.
6. The learned Judge, Artha Rin Aoalat on considering the application so filed by the decree holder bank issued warrant of arrest against the judgment-debtors by order dated 5-7-2011. This petitioner being aggrieved with the said order filed an application on 13-10-2011 before the Artha Rin Adalat for recalling the said warrant of arrest issued against him.
7. On considering the said application, the learned Judge of the Artha Rin Adalat by hisorder dated 17-10-2011 allowed the said petition asking the respondent bank to show cause within 45 days as to why warrant of arrest will not be issued against the petitioner. When the said mater was pending before the Artha Rin Adalat, the petitioner by suppressing those facts filed a Writ Petition being Writ Petition No. 7455 of 2011 challenging the very order of issuing warrant of arrest dated 5-7-2011.
8. By virtue of that Writ Petition this Court on 12-12-2011 issued a Rule and stayed the operation of the said order of warrant of arrest for a period of 4 (four) months asking the petitioner to deposit 25% of the decreetal amount within two months and that of the rest amunt by three equal installments. But when the matter came to the notice of the learned Judges of this Court the Rule was then discharged finding it in-fructuous.
9. After disposal of that Writ Petition the decree holder bank then filed another application on 1-3-2012 for issuing warrant of arrest against the judgment-debtors. Against the said prayer of Bank the petitioner filed an application for rejecting the said prayer. The learned Judge, of the Artha Rin Adalat then vide impugned order dated 12-3-2012 issued warrant of arrest against the judgment-debtors, challenging which the Petitioner obtained the instant Rule and order of stay.
10. Mr Mohammed Shamsul Alam, the learned counsel appearing for the petitioner has assailed the impugned order mainly on two grounds first, since the petitioner is not a loanee rather a mere guarantor of the loan so, warrant of arrest cannot be issued against him. Second, since Creditor bank failed to hold a single auction under the provision of Section 34(9) of the Ain so the order passed by the learned Judge, Artha Rin Adalat cannot be sustained. On such assertions the learned counsel for the petitioner prayed for making the Rule absolute.
11. By contrast, Mr Md Ismail Miah appeared for Mr Md Mamunur Rashid, the learned counsel for respondent No.2 opposed the rule by filing an affidavit-in-opposition where it has contended that, since the statute itself does not differentiate among the borrower and guarantor while issuing warrant of arrest, so the learned Judge of the Artha Rin Adalat has committed no illegally in issuing warrant of arrest against the petitioner.
12. It has further been contended in the affidavit-in-opposition that, since there has been no property mortgaged with the bank in such a situation, bank is unable to sell the property of the judgment-debtors for which the provision of Section 34(10) of the Ain would come in to play and as such, the learned Judge comitted no illegality issuing warrant of arrest against the petitioner. On such contention it was prayed for discharging the Rule.
13. We have heard the learned counsel for the petitioner perused the grounds so couched in the Writ Petition, contentions so taken in the affidavit-in-opposition and other papers annexed thereto and considered those meticulously. On going through the contents of the annexure so submitted by the petitioner we find that, the petitioner as well as well as other judgment-debtor did not mortgage any property in favour of the decreetal-bank to secure the repayment of the loan. Since the provision so enunciated in Section 34(10) clearly provides that, if it is not possible to hold a single auction sale under Section 34(9) of the Ain in that case, the judgment-debtors can be arrested and put in Civil Prison. While legislate, sub-section 10 of Section 34, the legislature very consciousy foresaw that if there remains no property of the borrower to mortgage with the creditor-bank in such a posture, Court can clothe with the authority to issue warrant of arrest and detain the judgment-debtors in Civil Prison to compel the judgment-debtors to repay the decreetal dues. On going through the provision of Section 34 we also find that, the legislature does not differentiate the borrower and guarantor in the event of issuing warrant of arrest and to detain in Civil Prison rather in every places in Section 34 of ‘the Ain’ it denotes the word “judgment-debtor.”
14. Since indubitably, the petitioner being a judgment-debtor so the learned Judge of the Artha Rin Adalat has rightly passed the impugned order issuing warrant of arrest against the petitioner. So the allged proposition so taken by the learned counsel for the petitioner that, since the petitioner is not a loanee so he can neither be arrested nor be detain in civil prison compelling him to repay the decreetal dues of principal judgment-debtor can in no way be sustained in law.
15. Record depicts, this petitioner had earlier filed writ petition No. 7455 of 2011 before this Court, Challenging same issues suppressing material facts but though discharged he even dared to move freely and contested the very issuing warrant of arrest dated 12-3-2012. Again, the judgment-debtor No.2 also filed Writ Petition No. 8057 of 2008 which was also discharged. So the judgment debtors left no stone unturned to halt the very realisation of decreetal dues of the creditor-bank which should be knocked down for the sake of realising public money.
16. Moreover, since the provision of subsection 10 of the Section 34 of the Ain empower the Artha Rin Adalat to issue warrant of arrest as well as to detain the judgment-debtor in default to re-paying the decreetal dues to the creditor bank, so we find that, no illegality has been committed on the part of the respondent No. 1 to issue warrant of arrest against the petitioner to compel him in repaying the decreetal dues.
17. In the premises, we find no error in the impugned order that calls for any interference by us consequently, the instant Rule has got no substance.
19. Hence, the order dated 12-3-2012 passed by the learned Judge, Artha Rin Adalat, First Court, Chattogram is hereby sustained.
20. The order of stay granted at the time of issuance of the Rule is hereby recalled and vacated.
Let a copy of this order be communicated to respondent No.1 at once for guidance.
