Appellate Division
(Civil)
Nazmun Ara Sultana J
Syed Mahmud Hossain J
Md Imman Ali J
Md Anwarul Haque J
Abdul Momen
Bhuiyan and others
…………..Petitioners
vs
District Judge, Dhaka and others ……… Respondents”
Judgment
November 17th, 2013
Constitution of Bangladesh, 1972
Article 104
This Division previously exercised the power of doing complete justice under 104 of the Constitution. The subject matter of the instant case represents an occasion to and demands exercise of this power by this Division for the purpose of protection of the dwelling house of the petitioners.
Civil Petition for Leave to Appeal is disposed of with the observation that the judgment-debtor will pay Taka 12,00,000 (twelve lakh) as compensation to the auction purchaser within 45 days of availability of the certified copy of this judgment, in default, the auction sale shall be deemed to have become absolute.
MA Hye vs Trading Corporation of Bangladesh, 40 DLR (AD) 206; Ganyson Ltd. vs Sonali Bank, 37 DLR (AD) 42 and AFM Naziruddin vs Hameeda Banu, 45 DLR (AD) 38 ref.
Abdul Wadud Bhuiyan, Senior Advocate, instructed by Chowdhury Md Zahangir, Advocate-on-Record-For the Petitioners.
Munir Sharif, Advocate instructed by Aftab Hossain, Advocate-on-Record-for Respondent No.3.
None represented-Respondent Nos. 1-2.
Judgment
Syed Mahmud Hossain J: This civil petition for leave to appeal is directed against the judgment and order dated 21-7-2011 passed by the High Court Division in Writ Petition No.6385 of 2010 discharging the Rule.
2. The fact- relevant for the purpose of disposal of this civil petition for leave to appeal, in a nutshell, are:
The writ-petitioners obtained loan of Taka 4,82,011.20 from respondent No.1, HBFC (House Building Finance Corporation) payable within 12 years but the writ-petitioners failed to repay the loan amount within the stipulated period. After that, HBFC filed Miscellaneous Case No.17 of 2001 in the Court of the District Judge, Dhaka under Article 27 of the House Building Finance Order No. 1973 (PO No.7 of 1973) for realization of the loan amount along with interest, being an amount of Taka 16,57,483.12 as on 31-10-2000. The learned District Judge, Dhaka after hearing ex parte by his order dated 25-6-2003 allowed the miscellaneous case. After that, the HBFC as the decree holder, put the decree in execution and accordingly, auction was held on 25-5-2010 and the highest bid of Taka 75,25,000 offered by respondent No.3 was accepted by order dated 25-5-2010. By the same order, the learned District Judge, Dhaka fixed 2-6-2010 for depositing the auction money. On that date, respondent No.3, the auction purchaser, prayed for time for depositing the auction money and the writ petitioners as the judgment-debtors filed another application for staying all further proceedings of the execution process and expressed their intention to pay the dues of the HBFC. The learned District Judge, Dhaka fixed 22-6-2010 for depositing the auction money and also for hearing of the application filed by the judgment-debtor-petitioners. On 8-7-2010, they filed another application contending that the auction sale had stood cancelled because of failure of the auction purchaser to comply with Rule 84 of Order XXI of the Code of Civil Procedure by way of making deposit of 25% of the bid money. So, the writ-petitioners prayed for two months’ time to pay the dues of the HBFC. But the learned District Judge, Dhaka by his order dated 8-7-2010 rejected both the applications of the writ-petitioners.
3. Being aggrieved by and dissatisfied with the order dated 8-7-2010 passed by the learned District Judge, Dhaka, Abdul Momen Bhuiyan and others as the writ-petitioners moved the High Court Division by filing writ petition and obtained Rule Nisi in Writ Petition No.6385 of 2010.
4. The writ-respondents contested the Rule by filing affidavits-in-opposition controverting the material statements made in the writ-petition.
5. The learned Judges of the High Court Division, upon hearing the parties, by the impugned judgment and order dated 21-7-2011, discharged the Rule.
6. Feeling aggrieved by and dissatisfied with the impugned judgment and order passed by the High Court Division, the writ-petitioners have filed this civil petition for leave to appeal before this Division.
7. Mr Abdul Wadud Bhuiyan, learned Senior Advocate, appearing on behalf of the leave-petitioners, submits that the High Court Division erroneously came to the finding that a revisional application lies against the order impugned before the High Court Division and that availability of alternative remedy by way of revision will not stand in the way of invoking writ jurisdiction raising purely a question of law or interpretation of statute and, as such, the impugned judgment should be set-aside. He further submits that the High Court Division failed to consider the propriety of the order impugned and that it should have resolved the issue on merit so that this Division could decide the validity of the order impugned before the High Court division and, as such, the impugned judgment should be set-aside.
8. Mr Munir Sharif, learned Advocate, appearing on behalf of respondent No.3, on the other hand, supports that impugned judgment.
9. We have considered the submissions of the learned Advocates of both the sides, perused the impugned judgment and the materials on record.
10. The High Court Division came to a finding that the learned District Judge accepted the auction money deposited by the auction purchaser but did not record any order about confirmation of sale as contemplated in Rule 92(1) of Order XXI of the Code of Civil Procedure; rather fixed 8-8-2010 for further step. The High Court Division further held that there was no material on record to show that any subsequent order was passed and that the writ-petitioners did not wait for further order of the learned District Judge.
11. From the aforesaid findings of the High Court Division, it appears that the sale is yet to be confirmed as contemplated in Rule 92(1) of the Order XXI of the Code of Civil Procedure.
12. The High Court Division held that the order impugned before it is not appealable under Article 27 of PO 7 of 1973 and that the auction sale has not been confirmed nor has it become absolute because no formal order of confirmation of sale has been passed by the learned District Judge. The High Court further held that the judgment-debtors (petitioners) could not resort to the relief provided under Rule 90 of Order XXI of the Code of Civil Procedure for setting aside the sale although a substantial part of the auction sale was completed as evident from the impugned order dated 8-7-2010 and the previous order.
The High Court Division having considered all aspects of the case concluded that another efficacious remedy was available to the petitioners, which is a civil revision under section 115(1) of the Code of Civil Procedure and that Article 27(10) of PO 7 of 1973 providing for appeal against the disposal order-cum-decree cannot be taken as implied bar within the meaning of section 9 of the Code of Civil Procedure for the purpose of invoking revisional jurisdiction of the High Court Division. The High Court Division further held that PO 7 of 1973 does not prohibit a civil revision in a situation like the present one; rather Article 27(9) speaks of the application of the Code of Civil Procedure to sell matters.
13. The High Court Division observed that in revisional jurisdiction, It could look into the questions raised by the petitioners in their application filed before the learned District Judge and that the petitioners have resorted to a wrong forum by filing the writ-petition and therefore, it was not maintainable.
14. The findings arrived at by the High Court Division as to the maintainability of the writ-petition is based on proper appreciation of law. The petitioners should have filed a revisional application under section 115(1) of the Code of Civil Procedure against the order impugned before the High Court Division.
15. Mr Abdul Wadud Bhuiyan, learned Senior Advocate, appearing for the petitioner:. cites the case of MA Hye vs Trading Corporation of Bangladesh, 40 DLR (AD) 206, in which, it has been held that availability of alternative remedy by way of appeal or revision will not stand in the way of invoking writ jurisdiction raising purely a question of law or interpretation of statute.
16. The case cited above is different from the case in hand and, as such, it has no manner of application. In addition the term “District Judge” according to section 3(15) of the General Clauses Act has to be taken as the principal civil Court of the original jurisdiction. The term ‘District Judge’ used in PO 7 of 1973 connotes the original civil jurisdiction of the District Judge as a civil Court and the provisions of the Code of Civil Procedure shall apply to matters relating to attachment and sale. Although Clause (9)of Article 27 provides for application of the Code of Civil Procedure to a sale or attachment and clause (10) provides for appeal only against the order of disposal of the case, PO No.7 of 1973 is silent about a situation like the present one arising from the sale proceeding. So, the Code of Civil Procedure shall apply to the present situation arising from sale, as per Article 27(9) itself. What is important to note here is that the proceedings initiated hy HBFC is in the nature of a civil suit. So, the provisions of the Code of Civil Procedure shall generally apply to a proceeding initiated by the HBFC but subject to the provisions of PO No.7 of 1973, that is, to those aspects of the proceedings which are not provided for and not contradictory to the said PO.
17. Therefore, it appears to us that another equally efficacious remedy is available to the petitioners, which is civil revision under section 115(1) of the Code of Civil Procedure.
18. Admittedly, in the case in hand, the sale has not been confirmed or nor has it become absolute because no formal order of confirmation of sale has been passed by the learned District Judge.
19. In paragraph 8 of the Supplementary Affidavit, the petitioners stated that they paid total Taka 22,24,000 upto 2-11-2010 towards payment of loan payable to HBFC.
20. The auction took place in respect of 400 square feet of Government Plot No.8, Block-A, Avenue-2, Section-H, Mirpur Housing Estate, Police Station-Mirpur, Dhaka, together with the building thereon.
21. On 22-6-2010, the auction purchaser, respondent No. 3 deposited the entire auction money amounting to Taka 75,25,000.
22. In several cases including the cases of Ganyson Ltd. vs Sonali Bank 37 DLR (AD) 42 and AFM Naziruddin vs Hameeda Banu 45 DLR (AD) 38, this Division previously exercised the power of doing complete justice under 104 of the Constitution. The subject matter of the instant case represents an occasion to and demands exercise of this power by this Division for the purpose of protection of the dwelling house of the petitioners.
The petitioners stated to have paid the entire dues payable to the HBFC. Admittedly, the auction purchaser, respondent No.3, deposited Taka 75,25,000 on 22-6-2010 and he should be compensated by the petitioners to retain their valuable house situated at Mirpur, Dhaka. Therefore, the petitioners are directed to pay Taka 12,00,000 (twelve lakh) to the auction-purchaser (respondent No.3) as compensation within 45 days, in default, this judgment shall be deemed to have been recalled and the auction shall be deemed to have been made absolute.
23. In the light of the findings made before, this civil petition for leave to appeal is disposed of with the observation that the judgment debtor will pay Taka 12,00,000 (twelve lakh) as compensation to the auction purchaser within 45 days of availability of the certified copy of this judgment, in default, the auction sale shall be deemed to have become absolute. The impugned judgment delivered by the High Court Division is set-aside.
