(From previous issue) :
the said application by the impugned order dated 27-10-2005 (Annexure-C1 to the supplementary affidavit of the writ petition). He frankly concedes that wrongly the petitioner filed the miscellaneous case under Order XXI rule 90 of the Code for setting aside the auction sale and that in the application of the miscellaneous case, the assertion of the petitioner was against the order of the Adalat accepting the highest offer being shockingly low and that on wrong advice the petitioner also challenged the order of the miscellaneous case in the miscellaneous appeal preferred before the learned District Judge, Narayangonj. In the light of the aforesaid submission, the learned Advocate does not like to press the order dated 16-3-2006 passed in miscellaneous case No. 26 of 2005.
7. However, the learned Advocate has drawn our attention to the application dated 27-10-2005 and the order of the Adalat dated 2710-2005 passed on the said application (Annexure-C and C/1 respectively to the supplementary affidavit of the writ petition). Challenging the propriety of the order dated 27-10-2005 in this Rule, the learned Advocate submits that proviso to section 33(2) of the Ain, 2003 empowers the Adalat to reject the offer (auction proposal) if it is found abnormally low and that in the auction notice the estimated price of the property having been shown at Taka 11,00,000, the highest offer at Taka 3,00,000, on the face of it, abnormally low. He further submits that immediately, after finding the highest offer at Taka 3,00,000 the petitioner raised objection against the said price and prayed before the Adalat, not to accept the said offer, being shockingly low. But the Adalat on misconception of the legal proposition of section 37 of the Ain, 2003, rejected the said application accepting the offer at Taka 3,00,000. He also submits that the borrower also raised objection against the highest offer at Taka 3,00,000 being shockingly low price. Lastly, the learned Advocate submits that the Adalat is not obliged to sell the property by any manner when the law has provided the alternative option to the decree holder towards satisfaction of the decree by taking control and possession of the property under section 33(5) of the Ain, 2003 and or the Adalat can issue certificate of title in respect of mortgaged property in favour of the decree holder under section 33(7) of the Ain, 2003.
8. Mr Md Abdus Sattar Khan, the learned Advocate for the respondent No. 5 (the borrower-judgment-debtor) concedes the submissions of the learned Advocate for the petitioner. He also submits that the offer at Taka 3,00,000 was shockingly low and the Adalat on misconception of law as well as on facts accepted the said price by the impugned order dated 27-10-2005.
9. Though· notice was duly served upon the respondent No. 3, the auction purchaser, but he has not appeared in the Rule.
10. We have gone through the writ petition, supplementary affidavit thereto, affidavitiin-opposition, impugned order and other materials as available on record.
11. It appears that Rule was issued to examine the propriety of the order dated 16-32006 passed by the Adalat in Miscellaneous Case No. 26 of 2005 arose out of Mortgage· Execution Case No. 123 of 2003 and also the order dated 27-10-2005 passed by the Adalat in Mortgage Execution Case No. 123 of 2003. The learned Advocate does not like to press the Rule so far as it ‘relates to the order dated 16-3-2006 submitting that it was filed by the petitioner in a wrong forum or misconception of law.
12. In view of the facts, let us examine the propriety of the order dated 27-10-2005 passed by the Adalat rejecting the application filed by the petitioner raising objection to the highest offer at Taka 3,00,000 being abnormally low.
13. Section 33 of the Ain, 2003 is the relevant law involved for auction sale of the mortgaged property for satisfaction of the Artha Rin decree. For better understanding, the provision of section 33 of the Ain, 2003 as was prevailing at the relevant time is quoted herein below:
14. In the present case before us the auction notice was published in “The Daily Jugantar” as per Section 33(1) of the Ain, 2003 for selling the mortgaged property mentioning estimated value of the property at Taka 11,00,000. On 27-10-2005, the date of auction sale, 3 (three) bidders participated in the bid with their respective price and the highest offer was made by the respondent No.3 at Taka 3,00,000. On the very day, the petitioner filed an application raising objection to the offered price on the ground that the price was abnormally low and the petitioner prayed for canceling the auction sale. It further appears that the Adalat rejected the said prayer assigning the reason that he was required to dispose of the execution case by 150 days as per Section 37 of the Ain, 2003. By filing affidavit-in-opposition the borrower (respondent No.5) also submits that the offered price of the property is exorbitantly low.
15. Proviso to Section 33(2) of the Ain, 2003 empowers the Adalat to cancel the proposal of the bidder if the offered price of the property is found abnormally low. In this case, admittedly the estimated value has been shown in the auction notice at Taka 11,00,000. Therefore, the highest offer at Taka 3,00,000, on the face of it, appears to be abnormally ow. Moreover, the borrower, as the land owner also admits that the price is shockingly low. In the circumstances, the Adalat ought to have rejected the bidders offer at Taka 3,00,000 instead of accepting it by the impugned order dated 27-10-2005. It also appears that in passing the impugned order, the Adalat did not discuss about the value of the property, inspite of the fact that the petitioner raised objection specifically about the price. Further it has already been settled by a good number of cases that provision of Section 37 of the Ain, 2003 regarding time limit for disposing of the execution case, is not mandatory rather it is directory. The Adalat misconceived the legal position and thereby considering the time frame for disposing of the execution case rejected the application for canceling the auction sale accepting the objected low price. Thus, the impugned order suffers from gross illegality and, as such, it is liable to be interfered by this Court.
16. We also find that section 33 of the Ain, 2003 has provided, the alternative provisions for disposing of the judgment-debtor’s property towards satisfaction of the decretal dues. In this process, if the Adalat fails to hold the auction in pursuance of the Section 33(1)-33(4) of the Ain, 2003, the law empowers the Adalat to issue certificate of possession in respect of the property under Section 33(5) of the Ain, 2003 and that the decree-holder taking possession and control over the property, can sell it following the provisions of sections 33(1)-33(4) of the Ain, 2003. Besides, on the prayer of the decreeholder, the Adalat can issue certificate of title in favour of the decree holder in respect of the property as provided in Section 33(7) of the Ain, 2003 following the conditions as laid down in the said sub-section.
17. Therefore, the Adalat is not obliged to sell the property in any manner or at any price for satisfaction of the decree, particularly when the decree holder specifically raises objection to the highest offer being abnormally low and that the amount is too inadequate to satisfy the decretal dues.
18. In view of the above discussions, we are led to hold that the Adalat committed error of law, apparent on the face of the record, in passing the impugned order dated 27-10-2005 and, as such, it warrants interference by this Court.
In the result, the Rule is made absolute in part. The order dated 27-10-2005 passed by the Adalat (respondent No.2) in Mortgage Execution Case No. 123 of 2003 (Annexure-C/1 to the supplementary affidavit of the writ petition) is hereby declared to have been passed without lawful authority and is of no legal effect.
(Concluded)
the said application by the impugned order dated 27-10-2005 (Annexure-C1 to the supplementary affidavit of the writ petition). He frankly concedes that wrongly the petitioner filed the miscellaneous case under Order XXI rule 90 of the Code for setting aside the auction sale and that in the application of the miscellaneous case, the assertion of the petitioner was against the order of the Adalat accepting the highest offer being shockingly low and that on wrong advice the petitioner also challenged the order of the miscellaneous case in the miscellaneous appeal preferred before the learned District Judge, Narayangonj. In the light of the aforesaid submission, the learned Advocate does not like to press the order dated 16-3-2006 passed in miscellaneous case No. 26 of 2005.
7. However, the learned Advocate has drawn our attention to the application dated 27-10-2005 and the order of the Adalat dated 2710-2005 passed on the said application (Annexure-C and C/1 respectively to the supplementary affidavit of the writ petition). Challenging the propriety of the order dated 27-10-2005 in this Rule, the learned Advocate submits that proviso to section 33(2) of the Ain, 2003 empowers the Adalat to reject the offer (auction proposal) if it is found abnormally low and that in the auction notice the estimated price of the property having been shown at Taka 11,00,000, the highest offer at Taka 3,00,000, on the face of it, abnormally low. He further submits that immediately, after finding the highest offer at Taka 3,00,000 the petitioner raised objection against the said price and prayed before the Adalat, not to accept the said offer, being shockingly low. But the Adalat on misconception of the legal proposition of section 37 of the Ain, 2003, rejected the said application accepting the offer at Taka 3,00,000. He also submits that the borrower also raised objection against the highest offer at Taka 3,00,000 being shockingly low price. Lastly, the learned Advocate submits that the Adalat is not obliged to sell the property by any manner when the law has provided the alternative option to the decree holder towards satisfaction of the decree by taking control and possession of the property under section 33(5) of the Ain, 2003 and or the Adalat can issue certificate of title in respect of mortgaged property in favour of the decree holder under section 33(7) of the Ain, 2003.
8. Mr Md Abdus Sattar Khan, the learned Advocate for the respondent No. 5 (the borrower-judgment-debtor) concedes the submissions of the learned Advocate for the petitioner. He also submits that the offer at Taka 3,00,000 was shockingly low and the Adalat on misconception of law as well as on facts accepted the said price by the impugned order dated 27-10-2005.
9. Though· notice was duly served upon the respondent No. 3, the auction purchaser, but he has not appeared in the Rule.
10. We have gone through the writ petition, supplementary affidavit thereto, affidavitiin-opposition, impugned order and other materials as available on record.
11. It appears that Rule was issued to examine the propriety of the order dated 16-32006 passed by the Adalat in Miscellaneous Case No. 26 of 2005 arose out of Mortgage· Execution Case No. 123 of 2003 and also the order dated 27-10-2005 passed by the Adalat in Mortgage Execution Case No. 123 of 2003. The learned Advocate does not like to press the Rule so far as it ‘relates to the order dated 16-3-2006 submitting that it was filed by the petitioner in a wrong forum or misconception of law.
12. In view of the facts, let us examine the propriety of the order dated 27-10-2005 passed by the Adalat rejecting the application filed by the petitioner raising objection to the highest offer at Taka 3,00,000 being abnormally low.
13. Section 33 of the Ain, 2003 is the relevant law involved for auction sale of the mortgaged property for satisfaction of the Artha Rin decree. For better understanding, the provision of section 33 of the Ain, 2003 as was prevailing at the relevant time is quoted herein below:
14. In the present case before us the auction notice was published in “The Daily Jugantar” as per Section 33(1) of the Ain, 2003 for selling the mortgaged property mentioning estimated value of the property at Taka 11,00,000. On 27-10-2005, the date of auction sale, 3 (three) bidders participated in the bid with their respective price and the highest offer was made by the respondent No.3 at Taka 3,00,000. On the very day, the petitioner filed an application raising objection to the offered price on the ground that the price was abnormally low and the petitioner prayed for canceling the auction sale. It further appears that the Adalat rejected the said prayer assigning the reason that he was required to dispose of the execution case by 150 days as per Section 37 of the Ain, 2003. By filing affidavit-in-opposition the borrower (respondent No.5) also submits that the offered price of the property is exorbitantly low.
15. Proviso to Section 33(2) of the Ain, 2003 empowers the Adalat to cancel the proposal of the bidder if the offered price of the property is found abnormally low. In this case, admittedly the estimated value has been shown in the auction notice at Taka 11,00,000. Therefore, the highest offer at Taka 3,00,000, on the face of it, appears to be abnormally ow. Moreover, the borrower, as the land owner also admits that the price is shockingly low. In the circumstances, the Adalat ought to have rejected the bidders offer at Taka 3,00,000 instead of accepting it by the impugned order dated 27-10-2005. It also appears that in passing the impugned order, the Adalat did not discuss about the value of the property, inspite of the fact that the petitioner raised objection specifically about the price. Further it has already been settled by a good number of cases that provision of Section 37 of the Ain, 2003 regarding time limit for disposing of the execution case, is not mandatory rather it is directory. The Adalat misconceived the legal position and thereby considering the time frame for disposing of the execution case rejected the application for canceling the auction sale accepting the objected low price. Thus, the impugned order suffers from gross illegality and, as such, it is liable to be interfered by this Court.
16. We also find that section 33 of the Ain, 2003 has provided, the alternative provisions for disposing of the judgment-debtor’s property towards satisfaction of the decretal dues. In this process, if the Adalat fails to hold the auction in pursuance of the Section 33(1)-33(4) of the Ain, 2003, the law empowers the Adalat to issue certificate of possession in respect of the property under Section 33(5) of the Ain, 2003 and that the decree-holder taking possession and control over the property, can sell it following the provisions of sections 33(1)-33(4) of the Ain, 2003. Besides, on the prayer of the decreeholder, the Adalat can issue certificate of title in favour of the decree holder in respect of the property as provided in Section 33(7) of the Ain, 2003 following the conditions as laid down in the said sub-section.
17. Therefore, the Adalat is not obliged to sell the property in any manner or at any price for satisfaction of the decree, particularly when the decree holder specifically raises objection to the highest offer being abnormally low and that the amount is too inadequate to satisfy the decretal dues.
18. In view of the above discussions, we are led to hold that the Adalat committed error of law, apparent on the face of the record, in passing the impugned order dated 27-10-2005 and, as such, it warrants interference by this Court.
In the result, the Rule is made absolute in part. The order dated 27-10-2005 passed by the Adalat (respondent No.2) in Mortgage Execution Case No. 123 of 2003 (Annexure-C/1 to the supplementary affidavit of the writ petition) is hereby declared to have been passed without lawful authority and is of no legal effect.
(Concluded)
