High Court Division
(Special Original Jurisdiction)
Farah Mahbub J
AKM Jahirul Haque J
Mohammd Saheed and another…………..Petitioner
Vs
Government of Bangladesh and others……..Respondents
Judgment
April 4th, 2013.
Artha Rin Adalat Ain (VIII of 2003)
Section 34(1)
It was the responsibility of the Adalat to take initiatives for auction sale of those moveable properties first before invoking power under Section 34(1) of the Ain. In the absence of the process issuance of the order of warrant of arrest is palpably illegal for being passed in violation of Section 34(9) of the Ain. ……..(11)
Younus Hider, Advocate with Md Shahed Razmul Bari, Advocate-For the Petitioner.
Anwarul Karim, Advocate-For the Respondent No.2
Judgment
Farah Mahbub J : In this Rule, issued under Article 102 of the Constitution of the People’s Republic of Bangladesh, the respondents have been called upon to show cause as to why the impugned order No. 9 dated 3-1-2011 issuing warrant of arrest against the petitioner under Section 34(1) of the Artha Rin Adalat Ain, 2003 (Annexure-D) passed be the respondent No. 1 in Artha Execution Case No. 65 of 2010 arising out of Artha Rin Suit No. 111 of 2007 should not be declared to have been passed without any lawful authority and hence,of no legal effect.
2. In view of the statements so made in the instant writ petition Mr Younus Haider with Mr Md Shahed Razmul Bari, the learned Advocates appearing on behalf of the petitioners submits drawing attention to the judgment and decree of the Artha Rin Suit No.111 of 2007 dated 28-10-2009 (Annexure-A and A-1 respectively) respectively that the Artha Rin Adalat while drawing up the decree has categorically included some immoveable properties as described in schedule Nos. 1 and 2. In this regard he further goes to contend drawing attention to the application filed under Order XXI, rule II of the Code of Civil Procedure (Annexure-B) that in column 11 the decree holder Bank has categorically made a prayer for realization of the decretal amount upon selling the moveable and immoveable property through auction and ultimately, has given a description of some moveable properties though strangely the Bank concern did not give any description whatsoever of the immoveable properties in view of the decree of the said Artha Rin Ain.
3. Further, he submits that it is evident the order sheet (Annexure-D) to the writ petition that before allowing the prayer of the respondent Bank for issuing warrant of arrest under Section 34(1) of the Artha Rin Adalat Ain, 2003 (in short, the Ain) no process had been initiated in due compliance of Section 34(9). Considering of the said factual position he submits that the impungned order of issuing warrant of arrest against the petitioners being violative of the said provision is not tenable in the eye of law and, as such, is liable to be knocked down upon making the Rule absolute.
4. Conversely, Mr AM Abtlur Razzaque, the learned Advocate appearing for the respondent Bank without filing any affidavit-in-opposition submits that it is fact that the respondent Bank while instituting the said Artha Rin Suit in its plaint did not include any immoveable property of the petitioner; however, the Adalat while decreeing the suit on contest inadvertently has included the immoveable properties belonging to the petitioners and ultimately to that effect has drawn up the decree (Annexure-A -I).
5. In view of the stated position, he submits that the petitioners having defaulted to pay of the decretal amount within time as prescribed in the judgment the respondent Bank was constrained to initiate Artha Execution Case No. 65 of 2010 including the immoveable properties of the petitioners as described in the Schedule of the decree and, as such, has given description of some moveable properties belonging to the petitioner; and considering the same the respondent Bank having no other alternative made a prayer under Section 34(1) of the Ain, 2003 to issue warrant of arrest against the petitioners with a view to realize the decretal amount speedily. Hence, he submits that no interference is called for.
6. From record it is apparent that in connection with Artha Rin Suit No. III of 2007 the Artha Rin Adalat No.3, Dhaka passed the judgment and decree on contest dated 28-10-2009 and ultimately has drawn up the decree on drawn up the decree on 28-10-2009 as contending (Annexure-A-I).
7. However, it is interesting to note that while drawing up the decree the Adalat has included some immoveable properties of the petitioners as described in schedule Nos. I and 2. Later, the petitioners having failed to pay up the decretal amount within the prescribed period of time: the respondent Bank filed Artha Execution Case No. 65 of 20 1 0 with a prayer for realization the decretal amount Ò`vwqM‡Yi wbKU nB‡Z wWwµ`v‡qi mg~`q cvIbv Av`v‡qi wbwg‡Ë ewY©Z A¯’vei m¤úwË I Acivci ¯’vei I A¯’vei m¤úwË †µvK KiZt m¤úwË µq Kwiqv Av`vq †`Iqvi Rb¨ wWwµ`vi e¨vs‡Ki cÖv_©bv|Ó
8. In the schedule of property, however, the respondent Bank has given description of some moveable properties belonging to the petitioners though it did not include the immoveable properties as were included in the decree of the said that Artha Rin Suit. Ultimately, the executing Adalat allowing the prayer of the respondent Bank dated 20-9-2010 under Section 34(1) of the Ain, 2003 issued warrant of arrest against the petitioners vide the impugned order 9 dated on 3-1-2011.
9. On perusal of the entire order sheets, as are made available before us, it is evident that prior to the issuance of the said order the executing Adalat did not take any initiatives whatsoever as required under Section 34(9) in view of the fact that in the decree there is a mention of some immoveable properties belonging to the petitioners.
10. In this regard, the learned Advocate for the respondent Bank submits that the properties as mentioned in the decree has been made inadvertently since those properties were not included in the plaint, so filed by the respondent Bank at the time of institution of the said Artha Rin Suit.
11. Furthermore, considering the submission of the respondent Bank it is apparent from the application of the execution proceeding that it has given description of certain moveable properties, therein; in that view of the matter it was the responsibility of ‘the Adalat to take initiatives for auction sale of those moveable properties first before invoking power under section 34(1) of the Ain, 2003. In the absence of the process we are of the view that issuance of the impugned Order of warrant of arrest against the petitioners is palpably legal for being passed in violation of Section 34(9) of the Ain, 2003.
12. In the result, the Rule is made absolute.
13. The impugned order No. 9 dated 3-1-2011 passed by the Artha Rin Adalat No.3, Dhaka in connection with Artha Execution Case No. 65 of 2010 arising out of Artha Rin Suit No. 111 of 2007 is herery declared to have been passed without any lawful authority and is of illegal effect.
14. However, the respondent Bank is at liberty to bring that anomaly as is apparent in the record to the notice of the Adalat concern and make necessary prayer to that effect in accordance with law.
15. There will be no order as to costs.
