Appellate Division (Civil)
Md Muzammel Hossain CJ
Md Abdul Wahhab Miah J
Hasan Foez Siddique J
AHM Shamsuddin
Chowdhury J
Judgment
February 17th, 2014.
Gias Uddin Chowdhury (Md) and others………..Petitioners
Vs
Bangladesh, represented by the Secretary, Ministry of Law and others…..Respondents
Artha Rin Adalat Ain (VIII of 2003)
Section 32(2)
The language of sub-section (2) is absolutely mandatory in nature as consequence of non-deposit of such security has been provided therein and since the petitioners did not deposit security equivalent to 25% of the decretal amount, their application was incompetent. ……..(9)
Artha Rin Adalat Ain (VIII of 2003)
Section 32(2)
A mere reading of sub-section (2) of section 32 shows that it is the precondition to deposit security equivalent to 25% of the decretal amount in order to lay claim to an immovable property involved in an execution case, but admittedly in this case. . (9)
KM Saifuddin Ahmed, Advocate instructed by Haridas Paul, Advocate-on-Record-For the Petitioner.
Shamim Khaled Ahmed, Senior Advocate instructed by Md Abu Siddique, Advocate-on-Record-For Respodent No. 3.
Habibul Islam Bhuiyan, Senior Advocate instructed by Nahid Sultana, Advocate-on-Record-For Resondent No.5 (as added respondent)
None represented-For Respondent Nos. 1-2 & 4.
Judgment
Md Abdul Wahhab Miah J: This petition for leave to appeal has been filed by the writ-petitioners (hereinafter referred to as the petitioners) against the judgment and order dated the 2nd day of December. 2010 passed by a Division Bench or the High Court Division in Writ Petition No.2488 of 2010 discharging the Rule.
2. The petitioners herein filed the writ petition before the High Court Division calling in question order No.14 dated 16-2-2010 passed by Artha Rin Adalat No.1, Chittagong in Artha Rin Execution Case No.118 of 2009 rejecting an application filed by them under Order XXI, rules 90 and 91 of the Code of Civil Procedure (the Code) read with section 32 of the Artha Rin Adalat Ain, 2003 (the Ain, 2003) for cancelling the auction sale held on 19-1-2010.
3. The execution case in which the said application was filed, was levied for execution of the decree passed by the Artha Rin Adalat No.1, Chittagong in Artha Rin Suit No.70 of 2008 filed by respondent No.3, herein, Social Investment Bank Limited against respondent No.4, namely, Nurul Islam Chowdhury for realization of the outstanding loan. The mortgaged property was sold in auction for the purpose of realization of the decretal amount. At this stage, the petitioners herein on 11-2-2010 filed an application under Order XXI, rules 90 and 91 of the Code and section 32 of the Ain, 2003 claiming the mortgaged property as their own and also asserting their possession therein. As no security equivalent to 25% of the decretal amount was deposited along with application, the Artha Rin Adalat rejected the same by its order dated 16-2-2010. It further appears that by the same order the Artha Rin Adalat directed for taking steps for submission of draft bainama by 2-3-20 10. Against this order, the petitioners filed the writ petition and obtained the Rule.
4. The Rule was contested by writ-respondent No.3, Social Investment Bank Limited, stating, inter alia, that the mortgaged property had already been sold in auction to one Imran and sale certificate was issued in his favour on 21-3-2010 “and also registered on 22-3-2010.”
5. A Division Bench of the High Court Division on hearing the writ petition discharged the Rule; hence this petition for leave to appeal.
6. Heard Mr KM Saifuddin Ahmed, learned Advocate, for the petitioners, Mr Shamim Khaled Ahmed, learned Advocate, for the respondent Bank and Mr Habibul Islam Bhuiyan, learned Advocate, for the added respondent.
7. From the impugned judgment, it appears that the learned Judges discharged the Rule on the findings, inter alia, that as the mortgaged property was sold in auction long before the filing of the application by the petitioners under section 32 of the Ain, 2003 and the sale certificate was issued long before the issuance of the Rule on 5-5-2002, the auction sale of the mortgaged property was thus made absolute before issuance of the Rule. So in the circumstances, there was no scope of giving any opportunity to the petitioners to raise any claim in respect of the mortgaged property in the execution case in question. The learned Judges also endorsed the view of the Artha Rin Adalat that the application under section 32 of the Ain, 2003 was not maintainable as the same was filed without depositing security equivalent to 25% of the decretal amount as per provision of law.
8. To dispose of this leave petition, we need to consider section 32 of the Ain, 2003 which reads as follows:
Ò32| Rvixi weiæ‡× AvcwË| -(1) A_© FY Av`vj‡Zi wWµx ev Av‡`k nB‡Z D™¢zZ Rvix gvgjvq †Kvb Z…Zxq cÿ †`Iqvbx Kvh©wewa AvB‡bi weavb g‡Z `vex †ck Kwi‡j, Av`vjZ cÖv_wgK we‡ePbvq D³ `vex mivmwi LvwiR bv Kwi‡j, wWµx`vi Ab~aŸ© 30 (wÎk) w`e‡mi g‡a¨ Dnvi weiæ‡× wjwLZ AvcwË `v‡qi Kwiqv ïbvbx `vex Kwi‡Z cvwi‡eb|
(2) Dc‡iv³ g‡Z `vex †ck Kwievi †ÿ‡Î `iLv¯ÍKvix, wWµxK…Z A‡_©i 25% Gi mgcwigvY RvgvbZ `vwLj Kwi‡e Ges Abyiƒc RvgvbZ `vwLj bv Kwi‡j, `vex AMÖvn¨ nB‡e|
(3) A_© FY Av`vjZ, Dc-aviv (1)- Gi Aax‡b †Kvb `vex we‡ePbv_© MÖnY Kwi‡j, mswkøó wel‡q `iLv¯ÍvwU `vwLj nIqvi 30 (wÎk) w`e‡mi g‡a¨ Dnv wb®úbœ Kwi‡e Ges †Kvb Kvi‡Y 30 (wÎk) w`e‡mi g‡a¨ Dnv wb®úbœ Kwi‡Z e¨_© nB‡j, KviY wjwce× KiZt D³ mgqmxgv Ab~aŸ© Av‡iv 30 (wÎk) w`em ewa©Z Kwi‡Z cvwi‡e|Ó
9. A mere reading of sub-section (2) of section 32 shows that it is the precondition to deposit security equivalent to 25% of the decretal amount in order to lay claim to an immovable property involved in an execution case, but admittedly in this case, the petitioners did not deposit any security for the said amount. The language of sub-section (2) is absolutely mandatory in nature as consequence of non-deposit of such security has been provided therein and since the petitioners did not deposit security equivalent to 25% of the decretal amount, their application was incompetent. Therefore, we do not find any error with the impugned judgment passed by the High Court Division in affirming the order passed by the Artha Rin Adalat in that respect.
It further appears that the mortgaged property was sold in auction on 19-1-2010, whereas the application under section 32 of the Ain, 2003 was filed by the petitioners on 11-2-2010. The High Court Division took notice of the fact that the sale certificate of the auction sale was issued on 21-3-2010 and was registered on 22-3-2010, whereas the Rule in the writ petition was issued on 5-5-20-10 and the learned Advocate for the petitioners could not deny the said fact before it.
The fact that the sale certificate in respect of the mortgaged property was issued on 21-3-20 10 and was registered on 22-3-2010, has not been denied in the leave petition before this Division.
10. In view of the above, we find no merit in this leave petition. However, we endorse the view of the High Court Division that “if the writ petitioner (sic, it would be petitioners) actually is the owner of the mortgaged property in question he can protect his right and title in that property by filing proper suit in a proper forum.”
The petition is dismissed.
Md Muzammel Hossain CJ
Md Abdul Wahhab Miah J
Hasan Foez Siddique J
AHM Shamsuddin
Chowdhury J
Judgment
February 17th, 2014.
Gias Uddin Chowdhury (Md) and others………..Petitioners
Vs
Bangladesh, represented by the Secretary, Ministry of Law and others…..Respondents
Artha Rin Adalat Ain (VIII of 2003)
Section 32(2)
The language of sub-section (2) is absolutely mandatory in nature as consequence of non-deposit of such security has been provided therein and since the petitioners did not deposit security equivalent to 25% of the decretal amount, their application was incompetent. ……..(9)
Artha Rin Adalat Ain (VIII of 2003)
Section 32(2)
A mere reading of sub-section (2) of section 32 shows that it is the precondition to deposit security equivalent to 25% of the decretal amount in order to lay claim to an immovable property involved in an execution case, but admittedly in this case. . (9)
KM Saifuddin Ahmed, Advocate instructed by Haridas Paul, Advocate-on-Record-For the Petitioner.
Shamim Khaled Ahmed, Senior Advocate instructed by Md Abu Siddique, Advocate-on-Record-For Respodent No. 3.
Habibul Islam Bhuiyan, Senior Advocate instructed by Nahid Sultana, Advocate-on-Record-For Resondent No.5 (as added respondent)
None represented-For Respondent Nos. 1-2 & 4.
Judgment
Md Abdul Wahhab Miah J: This petition for leave to appeal has been filed by the writ-petitioners (hereinafter referred to as the petitioners) against the judgment and order dated the 2nd day of December. 2010 passed by a Division Bench or the High Court Division in Writ Petition No.2488 of 2010 discharging the Rule.
2. The petitioners herein filed the writ petition before the High Court Division calling in question order No.14 dated 16-2-2010 passed by Artha Rin Adalat No.1, Chittagong in Artha Rin Execution Case No.118 of 2009 rejecting an application filed by them under Order XXI, rules 90 and 91 of the Code of Civil Procedure (the Code) read with section 32 of the Artha Rin Adalat Ain, 2003 (the Ain, 2003) for cancelling the auction sale held on 19-1-2010.
3. The execution case in which the said application was filed, was levied for execution of the decree passed by the Artha Rin Adalat No.1, Chittagong in Artha Rin Suit No.70 of 2008 filed by respondent No.3, herein, Social Investment Bank Limited against respondent No.4, namely, Nurul Islam Chowdhury for realization of the outstanding loan. The mortgaged property was sold in auction for the purpose of realization of the decretal amount. At this stage, the petitioners herein on 11-2-2010 filed an application under Order XXI, rules 90 and 91 of the Code and section 32 of the Ain, 2003 claiming the mortgaged property as their own and also asserting their possession therein. As no security equivalent to 25% of the decretal amount was deposited along with application, the Artha Rin Adalat rejected the same by its order dated 16-2-2010. It further appears that by the same order the Artha Rin Adalat directed for taking steps for submission of draft bainama by 2-3-20 10. Against this order, the petitioners filed the writ petition and obtained the Rule.
4. The Rule was contested by writ-respondent No.3, Social Investment Bank Limited, stating, inter alia, that the mortgaged property had already been sold in auction to one Imran and sale certificate was issued in his favour on 21-3-2010 “and also registered on 22-3-2010.”
5. A Division Bench of the High Court Division on hearing the writ petition discharged the Rule; hence this petition for leave to appeal.
6. Heard Mr KM Saifuddin Ahmed, learned Advocate, for the petitioners, Mr Shamim Khaled Ahmed, learned Advocate, for the respondent Bank and Mr Habibul Islam Bhuiyan, learned Advocate, for the added respondent.
7. From the impugned judgment, it appears that the learned Judges discharged the Rule on the findings, inter alia, that as the mortgaged property was sold in auction long before the filing of the application by the petitioners under section 32 of the Ain, 2003 and the sale certificate was issued long before the issuance of the Rule on 5-5-2002, the auction sale of the mortgaged property was thus made absolute before issuance of the Rule. So in the circumstances, there was no scope of giving any opportunity to the petitioners to raise any claim in respect of the mortgaged property in the execution case in question. The learned Judges also endorsed the view of the Artha Rin Adalat that the application under section 32 of the Ain, 2003 was not maintainable as the same was filed without depositing security equivalent to 25% of the decretal amount as per provision of law.
8. To dispose of this leave petition, we need to consider section 32 of the Ain, 2003 which reads as follows:
Ò32| Rvixi weiæ‡× AvcwË| -(1) A_© FY Av`vj‡Zi wWµx ev Av‡`k nB‡Z D™¢zZ Rvix gvgjvq †Kvb Z…Zxq cÿ †`Iqvbx Kvh©wewa AvB‡bi weavb g‡Z `vex †ck Kwi‡j, Av`vjZ cÖv_wgK we‡ePbvq D³ `vex mivmwi LvwiR bv Kwi‡j, wWµx`vi Ab~aŸ© 30 (wÎk) w`e‡mi g‡a¨ Dnvi weiæ‡× wjwLZ AvcwË `v‡qi Kwiqv ïbvbx `vex Kwi‡Z cvwi‡eb|
(2) Dc‡iv³ g‡Z `vex †ck Kwievi †ÿ‡Î `iLv¯ÍKvix, wWµxK…Z A‡_©i 25% Gi mgcwigvY RvgvbZ `vwLj Kwi‡e Ges Abyiƒc RvgvbZ `vwLj bv Kwi‡j, `vex AMÖvn¨ nB‡e|
(3) A_© FY Av`vjZ, Dc-aviv (1)- Gi Aax‡b †Kvb `vex we‡ePbv_© MÖnY Kwi‡j, mswkøó wel‡q `iLv¯ÍvwU `vwLj nIqvi 30 (wÎk) w`e‡mi g‡a¨ Dnv wb®úbœ Kwi‡e Ges †Kvb Kvi‡Y 30 (wÎk) w`e‡mi g‡a¨ Dnv wb®úbœ Kwi‡Z e¨_© nB‡j, KviY wjwce× KiZt D³ mgqmxgv Ab~aŸ© Av‡iv 30 (wÎk) w`em ewa©Z Kwi‡Z cvwi‡e|Ó
9. A mere reading of sub-section (2) of section 32 shows that it is the precondition to deposit security equivalent to 25% of the decretal amount in order to lay claim to an immovable property involved in an execution case, but admittedly in this case, the petitioners did not deposit any security for the said amount. The language of sub-section (2) is absolutely mandatory in nature as consequence of non-deposit of such security has been provided therein and since the petitioners did not deposit security equivalent to 25% of the decretal amount, their application was incompetent. Therefore, we do not find any error with the impugned judgment passed by the High Court Division in affirming the order passed by the Artha Rin Adalat in that respect.
It further appears that the mortgaged property was sold in auction on 19-1-2010, whereas the application under section 32 of the Ain, 2003 was filed by the petitioners on 11-2-2010. The High Court Division took notice of the fact that the sale certificate of the auction sale was issued on 21-3-2010 and was registered on 22-3-2010, whereas the Rule in the writ petition was issued on 5-5-20-10 and the learned Advocate for the petitioners could not deny the said fact before it.
The fact that the sale certificate in respect of the mortgaged property was issued on 21-3-20 10 and was registered on 22-3-2010, has not been denied in the leave petition before this Division.
10. In view of the above, we find no merit in this leave petition. However, we endorse the view of the High Court Division that “if the writ petitioner (sic, it would be petitioners) actually is the owner of the mortgaged property in question he can protect his right and title in that property by filing proper suit in a proper forum.”
The petition is dismissed.
