(From previous issue) :
7. We have heard the learned counsel appearing on behalf of the respondent No.2 bank and considered his submission and also perused the petition, impugned auction notice and other materials on record carefully. To appreciate the submission pressed in to service by the counsel for the respondent it would be profitable to quote sections 33(1) and 48 of the Ain, 2003.
8. Section 33(1) runs as follows:- wbjvg weµq 33(1) A_© FY Av`vjZ wWµx ev Av‡`k Rvixi mgq †Kvb m¤úwË weµ‡qi †ÿ‡Î ev`xi Li‡P weÁwß cÖPv‡ii ZvwiL nB‡Z Ab~¨b 15 (c‡bi) w`e‡mi mgq w`qv mxj‡gvniK…Z †UÛvi AvnŸvb Kwi‡e, D³ weÁwß Kgc‡ÿ eûj cÖPvwiZ GKwU evsjv RvZxq ˆ`wbK cwÎKvq, Z`ycwi b¨vq wePv‡ii ¯^v‡_© cÖ‡qvRb g‡b Kwi‡j ¯’vbxq GKwU cwÎKvq, hw` _v‡K, cÖKvk Kwi‡e; Ges Av`vj‡Zi †bvwUk †ev‡W© jUKvBqv I ¯’vbxqfv‡e †Xvj mniZ †hv‡MI D³ weÁwß cÖPvi Kwi‡e|
9. Further in section 48 of the Ain, 2003 definition of w`e‡mi MYbv has been given in the following manner:-
48| GB AvB‡bi Aaxb w`em MYbvi †ÿ‡Î †KejgvÎ wePvi‡Ki Kvh©w`em MYbv Kiv nB‡e Ges mvgwqKfv‡e `vwqZ¡cÖvß wePvi‡Ki Kvh© w`emI Abyiƒc MYbvi AšÍf~³© nB‡e|Ó
10. As we have already mentioned that the petitioner has made out his case in paragraph-7 of the petition. His case is that though under section 33(1) of the Ain, clear 15 days time for floating auction notice should be given but in the instant case only 11 working days were allowed for the same violating section 33(1) read with section 48 of the Ain.
11. Section 33(1) has allowed 15 days time for inviting tender for auction. And under section 48 of the Ain, the law clearly stipulates that for the purpose of counting days under Artha Rin Ain only the working days of the court i.e. the days on which the court functions (wePvi‡Ki Kvh©w`em) should be taken into consideration. Even the court in which the Judge-in-charge is sitting temporarily this section applies in verbatim. That is to say absolutely in terms of the said law as it stands.
12. In the decision of 59 DLR AD 26 as referred to above our Appellate Division held that the provision of section 48 of the Ain is limited only to take the time for disposal of the cases having no connection whatsoever with the period pre-scribed for filing an appeal. Nay of making deposit as required under section 41 of the Ain.
13. Here we like to quote from a pertinent part of the decision which is as under;
“The position shall be more clear if we read sections 45 to 46, prescribing various period as to filing/disposal of case in the aforesaid separate chapter i.e. chapter VIII. In view of what has been stated above we are of the view that, acceptance of the argument of the respondents that section 48 is applicable in case of filing the appeal shall lead to a dangerous effect telling upon the legal jurisprudence of the country and such a view is therefore unwarranted.”
14. The said decision equally applies with the same force in the instant case. Section 48 of the Ain, mandates only to take into account the time for disposal of the case which relates only those days spent during the proceeding of the court itself. No plausible deduction other than this can be given on this count.
15. On that score this Rule should fail being devoid of any substance.
16. In the result, the Rule is discharged without any order as to cost. The order of stay granted earlier by this court is hereby recalled and vacated.
Communicate this order at once.
(Concluded)
7. We have heard the learned counsel appearing on behalf of the respondent No.2 bank and considered his submission and also perused the petition, impugned auction notice and other materials on record carefully. To appreciate the submission pressed in to service by the counsel for the respondent it would be profitable to quote sections 33(1) and 48 of the Ain, 2003.
8. Section 33(1) runs as follows:- wbjvg weµq 33(1) A_© FY Av`vjZ wWµx ev Av‡`k Rvixi mgq †Kvb m¤úwË weµ‡qi †ÿ‡Î ev`xi Li‡P weÁwß cÖPv‡ii ZvwiL nB‡Z Ab~¨b 15 (c‡bi) w`e‡mi mgq w`qv mxj‡gvniK…Z †UÛvi AvnŸvb Kwi‡e, D³ weÁwß Kgc‡ÿ eûj cÖPvwiZ GKwU evsjv RvZxq ˆ`wbK cwÎKvq, Z`ycwi b¨vq wePv‡ii ¯^v‡_© cÖ‡qvRb g‡b Kwi‡j ¯’vbxq GKwU cwÎKvq, hw` _v‡K, cÖKvk Kwi‡e; Ges Av`vj‡Zi †bvwUk †ev‡W© jUKvBqv I ¯’vbxqfv‡e †Xvj mniZ †hv‡MI D³ weÁwß cÖPvi Kwi‡e|
9. Further in section 48 of the Ain, 2003 definition of w`e‡mi MYbv has been given in the following manner:-
48| GB AvB‡bi Aaxb w`em MYbvi †ÿ‡Î †KejgvÎ wePvi‡Ki Kvh©w`em MYbv Kiv nB‡e Ges mvgwqKfv‡e `vwqZ¡cÖvß wePvi‡Ki Kvh© w`emI Abyiƒc MYbvi AšÍf~³© nB‡e|Ó
10. As we have already mentioned that the petitioner has made out his case in paragraph-7 of the petition. His case is that though under section 33(1) of the Ain, clear 15 days time for floating auction notice should be given but in the instant case only 11 working days were allowed for the same violating section 33(1) read with section 48 of the Ain.
11. Section 33(1) has allowed 15 days time for inviting tender for auction. And under section 48 of the Ain, the law clearly stipulates that for the purpose of counting days under Artha Rin Ain only the working days of the court i.e. the days on which the court functions (wePvi‡Ki Kvh©w`em) should be taken into consideration. Even the court in which the Judge-in-charge is sitting temporarily this section applies in verbatim. That is to say absolutely in terms of the said law as it stands.
12. In the decision of 59 DLR AD 26 as referred to above our Appellate Division held that the provision of section 48 of the Ain is limited only to take the time for disposal of the cases having no connection whatsoever with the period pre-scribed for filing an appeal. Nay of making deposit as required under section 41 of the Ain.
13. Here we like to quote from a pertinent part of the decision which is as under;
“The position shall be more clear if we read sections 45 to 46, prescribing various period as to filing/disposal of case in the aforesaid separate chapter i.e. chapter VIII. In view of what has been stated above we are of the view that, acceptance of the argument of the respondents that section 48 is applicable in case of filing the appeal shall lead to a dangerous effect telling upon the legal jurisprudence of the country and such a view is therefore unwarranted.”
14. The said decision equally applies with the same force in the instant case. Section 48 of the Ain, mandates only to take into account the time for disposal of the case which relates only those days spent during the proceeding of the court itself. No plausible deduction other than this can be given on this count.
15. On that score this Rule should fail being devoid of any substance.
16. In the result, the Rule is discharged without any order as to cost. The order of stay granted earlier by this court is hereby recalled and vacated.
Communicate this order at once.
(Concluded)
