Provat Kumar Das Vs. Manager, Agrani Bank, Main Branch, Saheb Bazar, Rajshahi and another, 2009

Supreme Court

Appellate Division

(Civil)

Present:

Mohammad Fazlul Karim J

Md. Joynul Abedin J

Shah Abu Nayeem Mominur Rahman J

Provat Kumar Das…………..Petitioner

Vs.

Manager, Agrani Bank, Main Branch, Saheb Bazar, Rajshahi and another……..Respondents

Judgment

April 26, 2009.

Lawyers Involved:

Mozaffar Hossain, Senior Advocate, instructed by Bivash Chandra Biswas, Advocate-on-Record-For the Petitioner.

Not represented-the Respondents.

Civil Petition for Leave to Appeal No. 28 of 2008.

(From the judgment and order dated 05.12.2007 passed by the High Court Division in Writ Petition No. 3868 of 2004.)

Judgment

Shah Abu Nayeem Mominur Rahman J. – This leave petition is directed against the judgment and order dated 05.12.2007 passed in Writ Petition No. 3868 of 2004 by the High Court Division discharging the Rule.

2. The Rule arises out of the order dated 12.04.2004 passed by the Joint District Judge and Artha Rin Adalat, 3rd Court, Rajshahi, in Money Execution Case No.38 of 1995 arising out of Artha Rin Suit No.16 of 1992 by which the writ petitioner was ordered for civil imprisonment for a period of three months (90 days) under the provisions of Section 34 of the Artha Rin Adalat Ain, 2003. The respondent-bank filed Artha Rin Suit No. 16 of 1992 in the Artha Rin Adalat, 3rd Court, Rajshahi, for realization of Tk. 21,63,148/- which arose out of the banking loan facilities enjoyed by the defendant-loanee Nos.1-5 for import of Nilon Code Tyre and Tube by opening L.C. and that the defendant No.6 stood as guarantor and secured the loan. The writ petitioner was the defendant No.3 in the suit. The suit was decreed ex parte in due course and the respondent bank filed Money Execution Case No. 38 of 1995, which was renumbered as Money Execution Case No. 41 of 2004, for satisfaction of the decree, if required by sale of the scheduled property through auction. The decree holder bank, having taken step for auction sale of the property and there being no response, prayed for civil imprisonment of the judgment-debtor by filing an application under Section 34 of the Artha Rin Adalat Ain, 2003 and the executing court by its order dated 12.04.2004 allowed the prayer and ordered for civil imprisonment of the judgment debtors for three months, the period to be counted from the date of arrest.

3. Being aggrieved there-against the plaintiff moved the High Court Division in its writ jurisdiction, whereupon a Rule was issued. The High Court Division on hearing the contesting parties discharged the Rule with cost of Tk. 2,000/- observing, amongst others:-

“From a combined reading of those subsections of section 34 of the Artha Rin Adalat Ain, 2003 it transpires that the Adalat is empowered to pass an order of warrant of arrest/civil imprisonment directly when no auction sale is possible to be held for any reason. We have carefully examined the writ petition, affidavit-in-opposition and supplementary affidavit-in-opposition along with connected papers as filed therewith, it appears that the respondent No.1, Agrani Bank filed Money Execution Case No. 38 of 1995 in the Artha Rin Adalat, Rajshahi on 12.08.1995 against the petitioner and other judgment debtors. The Adalat by order dated 24.11.2003 directed to publish notice under the provisions of section 33 of the Ain, 2003 and on that, the auction sale notice was published in the ‘Daily Sonar Desh‘ on 19.2.2004 mentioning date of auction sale on 23.2.2004 at 3 p.m. but the property in question was not sold due to non­ availability of the auction purchaser. Therefore, the contention of the learned Advocate for the petitioner that no attempt was made to sale the property as per mandatory provision of section 34(9) of the Ain, 2003 by the respondent No.2 before passing the impugned order of civil imprisonment is wholly untenable.

So, in any view of the matter, the learned Judge of the Adalat committed no illegality in passing the impugned order of civil imprisonment rather, it appears to us that the impugned order is well founded in law. The learned Judge of the Adalat appears to have considered all the legal aspects.

In view of our discussions made in the foregoing paragraphs vis-a-vis the law, it is by now clear that the instant rule must fail.”

4. We have perused the application and heard the learned Advocate. The learned Advocate appearing for the leave petitioner submitted that the provision of Section-33 of the Artha Rin Adalat Ain, 2003 having not been complied with, the order for civil imprisonment under Section 34 of the Artha Rin Adalat Ain, 2003 was bad in the eye of law and the High Court Division arrived at its decision in not considering such aspect of the law and that the Artha Rin Adalat passed the order for civil imprisonment ex parte without providing any opportunity of hearing to the judgment-debtor-the writ petitioner, which is ex-facie a violation of the principle of natural justice and thus the High Court Division acted illegally in passing the impugned order.

5. We have perused the leave petition and considered the submissions of the learned Advocate. We have also perused the provisions of Sections 33 and 34 of the Artha Rin Adalat Ain, 2003. It appears that the Section 34 of the Artha Rin Adalat Ain, 2003 is clear and provides for ordering civil imprisonment up to 6 months against a judgment-debtor for compelling to satisfy the decree. Section 34 is not dependant upon Section-33. In the instant case, the decree holder has taken step for auction sale of the property but there being no response, auction sale could not be held. Further it appears from the provisions of Section-34 of the Artha Rin Adalat Ain, 2003 that the law provides for simple civil imprisonment of the judgment-debtor to compel to make the payment for satisfaction of the decree and is not an alternative punishment in lieu of payment of the decretal amount.  Civil imprisonment will not exempt payment of the decretal amount.

6. Be that as it may having regard to the reasons given by the High Court Division in discharging the rule as well as the submissions of the learned Advocate for the leave petitioner and the provisions of Section 34 of the Artha Rin Adalat Ain, 2003, we are of the view that the impugned judgment and order has been passed by the High Court Division in accordance with law and no interference is called for.

Accordingly, the application for leave to appeal is dismissed.

ED.

Source : 15 MLR (AD) (2010) 96

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