(From previous issue) :
(?) ????? ???? ??????? ?? ??????? ?????, ????? ?? ?????????? ????? ????? ????? ?? ????????? ????? ??????? ?? ???? ??? ???????? ????? ? ????? ??? ???, ???? ????? ??????? ????? ???; ??? ??????? ????? ???; ??? ??????? ????? ????? ????? ????? ????????? ????? ?? ????? ?????? ????? ????”
????? ???? ??? ???? ????? ????? ????? ????? ??????? ??????? ?(??) ???? ??? ???????? ????? ?? ????? ??? ???, ???? ????? ????? ????????? ????? ?? ????? ?????? ????? ????”
9. The aforesaid provisions of Section 28 of the Artha Rin Adalat Ain, 2003 (“the Adalat”) provides for a special law of limitation for the purpose of dealing with execution proceedings. Sub-section (1) of Section 28 has imposed a restriction on the decree holder that the execution case shall have to be filed within l(one) year from the date of decree subject to the provisions of Section 29 of the Ain. Section 29 of the Ain gives special latitude for reckoning the time spent in payment of the decretal amount which is to be gathered from the context of the decree. Sub-section (2) of section 28 creates an embargo upon the decree-holder providing the consequence that the execution case shall be rejected if it is not filed in strict compliance with the provisions of subsection (1) of Section 28 within one year from the date of the decree, subject to the provision of section 29 of the Ain. Sub-section (3) of Section 28 speaks about filing of second or subsequent execution case fixing a time limit of l(one) year from the date of rejection or disposal of the first execution case. Sub-section (4) of Section 28 is not relevant for our purpose.
10. In the instant case, the admitted position is that the first execution was not filed within 1 (one) year from the date of the decree in compliance with the provisions of sub-section (1) of Section 28 of the Ain and therefore the first execution case was rejected on 15-6-2011 by the Executing Court under sub-section (2) of Section 28. The rights of the decree-holder in accordance with the statute has apparently been extinguished as a legal consequence of the special provision of limitation incorporated therein. Since the first execution case was time barred under the special provision of limitation as provided for in sub-section (2) of Section 28 of the Ain, the second execution case if continued, will render the aforesaid provisions nugatory.
It is possible that under sub-section (3) of Section 28 of the Ain, a second execution case can be maintained when it is filed within one year from the date of rejection or disposal of the first execution case, however that course is available only when the first execution case is rejected for reasons other than the ground of limitation. If the second execution case is continued after rejection of the first execution case on the point of limitation it will defeat the special provision of limitation as contemplated in the statute.
11. With regard to the decision as referred to by the learned Advocate for the petitioner we find the same not applicable in the context of the facts and circumstances of the instant case and accordingly the same is not discussed.
12. It appears from the materials on record that there was a gross negligence of the concerned officials of Bangladesh Krishi Bank Limited in not preferring the execution case in time and, as such, an appropriate direction should be given by this Court to the authority concerned of the Bangladesh Krishi Bank Limited. Accordingly, the Managing Director, Bangladesh Krishi Bank Limited is directed to find out who were involved in such negligence through an inquiry and to realize the decreetal amount with interest from the person or persons concerned, liable for such negligence. The Managing Director of the bank is also directed to initiate a departmental proceeding against the person or persons who were involved in such gross negligence, if the same has not been done in the meantime.
13. Having considered the provisions of law, we find substance in the Rule.
14. In the result, the Rule is made absolute however, there will be no order as to cost.
15. The impugned order dated 9-9-2012 passed by the Artha Rin Adalat No.2, Dhaka in Execution Case No. 205 of 2011 is declared without lawful authority and of no legal effect and accordingly the proceeding of the Second Execution Case No. 205 of 2011 is hereby declared to have been continued without lawful authority.
Let a copy of this judgment be sent to the Artha Rin Adalat No.2, Dhaka and the Managing Director, Bangladesh Krishi Bank Limited, Krishi Bank Bhaban, 83-84 Motijheel, Dhaka.
(Concluded)
(?) ????? ???? ??????? ?? ??????? ?????, ????? ?? ?????????? ????? ????? ????? ?? ????????? ????? ??????? ?? ???? ??? ???????? ????? ? ????? ??? ???, ???? ????? ??????? ????? ???; ??? ??????? ????? ???; ??? ??????? ????? ????? ????? ????? ????????? ????? ?? ????? ?????? ????? ????”
????? ???? ??? ???? ????? ????? ????? ????? ??????? ??????? ?(??) ???? ??? ???????? ????? ?? ????? ??? ???, ???? ????? ????? ????????? ????? ?? ????? ?????? ????? ????”
9. The aforesaid provisions of Section 28 of the Artha Rin Adalat Ain, 2003 (“the Adalat”) provides for a special law of limitation for the purpose of dealing with execution proceedings. Sub-section (1) of Section 28 has imposed a restriction on the decree holder that the execution case shall have to be filed within l(one) year from the date of decree subject to the provisions of Section 29 of the Ain. Section 29 of the Ain gives special latitude for reckoning the time spent in payment of the decretal amount which is to be gathered from the context of the decree. Sub-section (2) of section 28 creates an embargo upon the decree-holder providing the consequence that the execution case shall be rejected if it is not filed in strict compliance with the provisions of subsection (1) of Section 28 within one year from the date of the decree, subject to the provision of section 29 of the Ain. Sub-section (3) of Section 28 speaks about filing of second or subsequent execution case fixing a time limit of l(one) year from the date of rejection or disposal of the first execution case. Sub-section (4) of Section 28 is not relevant for our purpose.
10. In the instant case, the admitted position is that the first execution was not filed within 1 (one) year from the date of the decree in compliance with the provisions of sub-section (1) of Section 28 of the Ain and therefore the first execution case was rejected on 15-6-2011 by the Executing Court under sub-section (2) of Section 28. The rights of the decree-holder in accordance with the statute has apparently been extinguished as a legal consequence of the special provision of limitation incorporated therein. Since the first execution case was time barred under the special provision of limitation as provided for in sub-section (2) of Section 28 of the Ain, the second execution case if continued, will render the aforesaid provisions nugatory.
It is possible that under sub-section (3) of Section 28 of the Ain, a second execution case can be maintained when it is filed within one year from the date of rejection or disposal of the first execution case, however that course is available only when the first execution case is rejected for reasons other than the ground of limitation. If the second execution case is continued after rejection of the first execution case on the point of limitation it will defeat the special provision of limitation as contemplated in the statute.
11. With regard to the decision as referred to by the learned Advocate for the petitioner we find the same not applicable in the context of the facts and circumstances of the instant case and accordingly the same is not discussed.
12. It appears from the materials on record that there was a gross negligence of the concerned officials of Bangladesh Krishi Bank Limited in not preferring the execution case in time and, as such, an appropriate direction should be given by this Court to the authority concerned of the Bangladesh Krishi Bank Limited. Accordingly, the Managing Director, Bangladesh Krishi Bank Limited is directed to find out who were involved in such negligence through an inquiry and to realize the decreetal amount with interest from the person or persons concerned, liable for such negligence. The Managing Director of the bank is also directed to initiate a departmental proceeding against the person or persons who were involved in such gross negligence, if the same has not been done in the meantime.
13. Having considered the provisions of law, we find substance in the Rule.
14. In the result, the Rule is made absolute however, there will be no order as to cost.
15. The impugned order dated 9-9-2012 passed by the Artha Rin Adalat No.2, Dhaka in Execution Case No. 205 of 2011 is declared without lawful authority and of no legal effect and accordingly the proceeding of the Second Execution Case No. 205 of 2011 is hereby declared to have been continued without lawful authority.
Let a copy of this judgment be sent to the Artha Rin Adalat No.2, Dhaka and the Managing Director, Bangladesh Krishi Bank Limited, Krishi Bank Bhaban, 83-84 Motijheel, Dhaka.
(Concluded)
