High Court Division :
(Special Original Jurisdiction)
Shamim Hasnain J
Mohammad Ullah J
Janata Bank Ltd……….
………..Petitioner
vs
Government of Bangladesh represented by the secretary, Ministry of Finance and Planning, and others….. ….. Respondents.
Judgment
May 24th, 2015
Artha Rin Adalat Ain (VIII of 2003)
Section 28(3)
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. .. …. (10)
Observation
There was a gross negligence of the concerned officials of Bangladesh Krishi Bank in not preferring the execution case in time and as such an appropriate direction should be given to the authority concerned of the Bangladesh Krishi Bank. Accordingly, the Managing Director, Bangladesh Krishi Bank 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. . ….. (12)
Dr Md Asadullah vs SonaIi Bank Limited, 62 DLR 474 ref.
Halima Ferdous, Advocate-For the Petitioner. Shaheen Ahmed, Advocate-For the Respondent No. 3.
Judgment
Mohammad Ullah J : On an application under Article 102 of the Constitution this Rule Nisi was issued at the instance of the petitioner Janata Bank Ltd., Head Office, Dhaka calling upon the respondent No. I, Government of the People’s Republic of Bangladesh represented by the Secretary, Ministry of Finance and Planning, Secretariat Building, Ramna, Dhaka, respondent No.2, Learned Judge, Artha Rin Adalat No.2, Dhaka, respondent No.3, Bangladesh Krishi Bank Ltd. principal branch at Krishi Bank Bhaban, 83-84 Motijheel, Dhaka, and respondent No.4, Md Asraf Ali Talukder Proprietor of M/ s Asraf Ali, Village and Post Office-Rampur Bazar, PS-Kalihati, District-Tangail, to show cause as to why the Order No. 16 dated 9-9-2012 (as contained in Annexure-E) passed by the Artha Rin Adalat No.2, Dhaka in Artha Jari Case No. 205 of 2011 (Second Execution Case) arising out of Artha Rin Suit No. 182 of 2003 entertaining the second execution case under Section 28(4) of the Artha Rin Adalat Ain, 2003 should not be declared to have been passed without lawful authority and of no legal effect.
2. The short facts, relevant for the purpose of disposal of this Rule, are that the respondent No.3 instituted Mortgage Suit No. 49 of 1992 before the Artha Rin Adalat 2nd Court, Dhaka impleading the petitioner Janata Bank Limited and another as defendants for realization of Taka 25,68,852.41 as stood on 31-10-1995. Subsequently on transfer the said suit was registered as Artha Rin Suit No. 182 of 2003. Thereafter, after hearing the parties and on consideration of the materials on record the Adalat decreed the suit vide judgment and decree dated 10-2-2005 and the decree was drawn up and signed on the same day.
Being aggrieved by the aforesaid judgment and decree dated 10-2-2005, the Janata Bank Limited, as appellant preferred Artha Rin Appeal No. 4 of 2005 before the learned District Judge who transferred the appeal to the learned Additional District Judge, 2nd Court, Dhaka for disposal. The Additional District Judge, 2nd Court, Dhaka after hearing the parties dismissed the appeal on 19-11-2009 with certain modifications of the said judgment and decree. The plaintiff decree-holder thereafter filed Execution Case No. 59 of 2011 on 1-3-2011 to materialize the decree before the Artha Rin Adalat, Second Court, Dhaka. The Adalat after hearing the parties and on consideration of the materials on record rejected the application for execution filed by the decree-holder Krishi Bank vide judgment and order dated 15-6-2011 on the point of limitation since the execution case was not filed within l (one) year from the date of decree as per the provisions of Section 28(2) of the Artha Rin Adalat Ain 2003. Thereafter, the decree-holder preferred Second Execution Case No. 205 of 2011 on 1-8-2011 before the Artha Rin Adalat, 2nd Court, Dhaka.
The petitioner as judgment-debtor contested the execution case and filed an application contending, inter alia, that the first execution case having been rejected on the point of limitation, there was no question of filing the second case for execution of the decree.
The Executing Court after hearing the parties rejected the application of the petitioner judgment-debtor and registered the second execution case vide order dated 9-9-2012 (“the impugned order”).
Being aggrieved by and dissatisfied with the aforesaid order dated 9-9-2012 the petitioner approached this Court and obtained the present Rule as stated above. At the time of issuance of the Rule this Court vide order dated 13-5-2013 stayed further proceedings of Artha Jari Case No. 205 of 2011 then pending before the Artha Rin Adalat, 2nd Court, Dhaka for a period of 6(six) months and subsequently on 5-5-2015 the order of stay was extended for a further period of 6(six) months.
3. This Rule is contested by respondent No. 3 Bangladesh Krishi Bank Limited through Mr Shaheen Ahmed, learned Advocate who filed affidavit-in-opposition.
4. Ms Halima Ferdous, learned Advocate appearing on behalf of the petitioner submits that the impugned order suffers from gross illegality inasmuch as the first execution case having been rejected on the point of limitation, the institution of the second execution case does not arise.
The learned Advocate submits further that since the first execution case was barred by the law of special limitation under Section 28(1) and (2) of the Artha Rin Adalat Ain, 2003, continuation of the proceedings of the second execution case is liable to be declared lo have been proceeded without lawful authority and of no legal effect.
5. In controverting the submissions of the learned Advocate for the petitioner, Mr Shaheen Ahmed, learned Advocate for the respondent-bank refers to the expressed provisions of sub-section (3) of Section 28 and submits that when the first execution case is rejected on the point of limitation or disposed of on different pretext, a second execution case can be continued and proceeded if it is filed within 1 (one) year from the date of rejection of the first execution case in accordance with sub-section (3) of Section 28 of the Artha Rin Adalat, 2003.
6. The learned Advocate seeks to rely on a decision in the case of Dr Md Asadullah vs Sonali Bank Limited reported in 62 OLR 474.
7. We have heard the learned Advocates for both the parties, perused the materials on record including the writ petition and the annexures thereto and the affidavit-in- opposition as filed by the respondent No. 3.
8. At first let us see the relevant provisions of law on the issue. Section 28 of the Artha Rin Adalat Ain, 2003 has authorized the Adalat to deal with execution proceedings which runs as follows:
28| (1) The Limitation Act, 1908 Ges The Code of Civil Procedure, 1908 ? ??????? ?? ?????? ????? ?? ???, ?????????, ????????? ?????? ?? ???? ??????? ????? ????? ?????, ?????? ?? ???? ??????? ????? ???????? ? (??) ?????? ????? ???? ?? ?? ????? ???????? ????? ???? ????? ??????? ????? ????? ????? ??????
(?) ??-???? (?) ?? ??????? ??????, ?????? ?? ???? ???????? ??????? ? (??) ???? ???????? ????? ?? ???? ???? ???????? ??? ????? ??????? ????? ??? ??? ?????? ??????? ????? ????? ????? ????????? ????? ?? ???? ?????? ????? ?????
(?? ?? ?????????)
(?) ????? ???? ??????? ?? ??????? ?????, ????? ?? ?????????? ????? ????? ????? ?? ????????? ????? ??????? ?? ???? ??? ???????? ????? ? ????? ??? ???, ???? ????? ??????? ????? ???; ??? ??????? ????? ???; ??? ??????? ????? ????? ????? ????? ????????? ????? ?? ????? ?????? ????? ????”
????? ???? ??? ???? ????? ????? ????? ????? ??????? ??????? ?(??) ???? ??? ???????? ????? ?? ????? ??? ???, ???? ????? ????? ????????? ????? ?? ????? ?????? ????? ????”
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.
(Special Original Jurisdiction)
Shamim Hasnain J
Mohammad Ullah J
Janata Bank Ltd……….
………..Petitioner
vs
Government of Bangladesh represented by the secretary, Ministry of Finance and Planning, and others….. ….. Respondents.
Judgment
May 24th, 2015
Artha Rin Adalat Ain (VIII of 2003)
Section 28(3)
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. .. …. (10)
Observation
There was a gross negligence of the concerned officials of Bangladesh Krishi Bank in not preferring the execution case in time and as such an appropriate direction should be given to the authority concerned of the Bangladesh Krishi Bank. Accordingly, the Managing Director, Bangladesh Krishi Bank 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. . ….. (12)
Dr Md Asadullah vs SonaIi Bank Limited, 62 DLR 474 ref.
Halima Ferdous, Advocate-For the Petitioner. Shaheen Ahmed, Advocate-For the Respondent No. 3.
Judgment
Mohammad Ullah J : On an application under Article 102 of the Constitution this Rule Nisi was issued at the instance of the petitioner Janata Bank Ltd., Head Office, Dhaka calling upon the respondent No. I, Government of the People’s Republic of Bangladesh represented by the Secretary, Ministry of Finance and Planning, Secretariat Building, Ramna, Dhaka, respondent No.2, Learned Judge, Artha Rin Adalat No.2, Dhaka, respondent No.3, Bangladesh Krishi Bank Ltd. principal branch at Krishi Bank Bhaban, 83-84 Motijheel, Dhaka, and respondent No.4, Md Asraf Ali Talukder Proprietor of M/ s Asraf Ali, Village and Post Office-Rampur Bazar, PS-Kalihati, District-Tangail, to show cause as to why the Order No. 16 dated 9-9-2012 (as contained in Annexure-E) passed by the Artha Rin Adalat No.2, Dhaka in Artha Jari Case No. 205 of 2011 (Second Execution Case) arising out of Artha Rin Suit No. 182 of 2003 entertaining the second execution case under Section 28(4) of the Artha Rin Adalat Ain, 2003 should not be declared to have been passed without lawful authority and of no legal effect.
2. The short facts, relevant for the purpose of disposal of this Rule, are that the respondent No.3 instituted Mortgage Suit No. 49 of 1992 before the Artha Rin Adalat 2nd Court, Dhaka impleading the petitioner Janata Bank Limited and another as defendants for realization of Taka 25,68,852.41 as stood on 31-10-1995. Subsequently on transfer the said suit was registered as Artha Rin Suit No. 182 of 2003. Thereafter, after hearing the parties and on consideration of the materials on record the Adalat decreed the suit vide judgment and decree dated 10-2-2005 and the decree was drawn up and signed on the same day.
Being aggrieved by the aforesaid judgment and decree dated 10-2-2005, the Janata Bank Limited, as appellant preferred Artha Rin Appeal No. 4 of 2005 before the learned District Judge who transferred the appeal to the learned Additional District Judge, 2nd Court, Dhaka for disposal. The Additional District Judge, 2nd Court, Dhaka after hearing the parties dismissed the appeal on 19-11-2009 with certain modifications of the said judgment and decree. The plaintiff decree-holder thereafter filed Execution Case No. 59 of 2011 on 1-3-2011 to materialize the decree before the Artha Rin Adalat, Second Court, Dhaka. The Adalat after hearing the parties and on consideration of the materials on record rejected the application for execution filed by the decree-holder Krishi Bank vide judgment and order dated 15-6-2011 on the point of limitation since the execution case was not filed within l (one) year from the date of decree as per the provisions of Section 28(2) of the Artha Rin Adalat Ain 2003. Thereafter, the decree-holder preferred Second Execution Case No. 205 of 2011 on 1-8-2011 before the Artha Rin Adalat, 2nd Court, Dhaka.
The petitioner as judgment-debtor contested the execution case and filed an application contending, inter alia, that the first execution case having been rejected on the point of limitation, there was no question of filing the second case for execution of the decree.
The Executing Court after hearing the parties rejected the application of the petitioner judgment-debtor and registered the second execution case vide order dated 9-9-2012 (“the impugned order”).
Being aggrieved by and dissatisfied with the aforesaid order dated 9-9-2012 the petitioner approached this Court and obtained the present Rule as stated above. At the time of issuance of the Rule this Court vide order dated 13-5-2013 stayed further proceedings of Artha Jari Case No. 205 of 2011 then pending before the Artha Rin Adalat, 2nd Court, Dhaka for a period of 6(six) months and subsequently on 5-5-2015 the order of stay was extended for a further period of 6(six) months.
3. This Rule is contested by respondent No. 3 Bangladesh Krishi Bank Limited through Mr Shaheen Ahmed, learned Advocate who filed affidavit-in-opposition.
4. Ms Halima Ferdous, learned Advocate appearing on behalf of the petitioner submits that the impugned order suffers from gross illegality inasmuch as the first execution case having been rejected on the point of limitation, the institution of the second execution case does not arise.
The learned Advocate submits further that since the first execution case was barred by the law of special limitation under Section 28(1) and (2) of the Artha Rin Adalat Ain, 2003, continuation of the proceedings of the second execution case is liable to be declared lo have been proceeded without lawful authority and of no legal effect.
5. In controverting the submissions of the learned Advocate for the petitioner, Mr Shaheen Ahmed, learned Advocate for the respondent-bank refers to the expressed provisions of sub-section (3) of Section 28 and submits that when the first execution case is rejected on the point of limitation or disposed of on different pretext, a second execution case can be continued and proceeded if it is filed within 1 (one) year from the date of rejection of the first execution case in accordance with sub-section (3) of Section 28 of the Artha Rin Adalat, 2003.
6. The learned Advocate seeks to rely on a decision in the case of Dr Md Asadullah vs Sonali Bank Limited reported in 62 OLR 474.
7. We have heard the learned Advocates for both the parties, perused the materials on record including the writ petition and the annexures thereto and the affidavit-in- opposition as filed by the respondent No. 3.
8. At first let us see the relevant provisions of law on the issue. Section 28 of the Artha Rin Adalat Ain, 2003 has authorized the Adalat to deal with execution proceedings which runs as follows:
28| (1) The Limitation Act, 1908 Ges The Code of Civil Procedure, 1908 ? ??????? ?? ?????? ????? ?? ???, ?????????, ????????? ?????? ?? ???? ??????? ????? ????? ?????, ?????? ?? ???? ??????? ????? ???????? ? (??) ?????? ????? ???? ?? ?? ????? ???????? ????? ???? ????? ??????? ????? ????? ????? ??????
(?) ??-???? (?) ?? ??????? ??????, ?????? ?? ???? ???????? ??????? ? (??) ???? ???????? ????? ?? ???? ???? ???????? ??? ????? ??????? ????? ??? ??? ?????? ??????? ????? ????? ????? ????????? ????? ?? ???? ?????? ????? ?????
(?? ?? ?????????)
(?) ????? ???? ??????? ?? ??????? ?????, ????? ?? ?????????? ????? ????? ????? ?? ????????? ????? ??????? ?? ???? ??? ???????? ????? ? ????? ??? ???, ???? ????? ??????? ????? ???; ??? ??????? ????? ???; ??? ??????? ????? ????? ????? ????? ????????? ????? ?? ????? ?????? ????? ????”
????? ???? ??? ???? ????? ????? ????? ????? ??????? ??????? ?(??) ???? ??? ???????? ????? ?? ????? ??? ???, ???? ????? ????? ????????? ????? ?? ????? ?????? ????? ????”
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.
