Abdur Rashid alias Abdur Rasheed Vs. Judge, Artha Rin Adalat No.1, Chittagong, 2009

 Supreme Court

Appellate Division

(Civil)

Present:

MM Ruhul Amin CJ

Md. Joynul Abedin J

Md. Abdul Matin J

Shah Abu Nayeem Mominur Rahman J

ABM Khairul Haque J

Abdur Rashid alias Abdur Rasheed………………………Petitioner

Vs.

Judge, Artha Rin Adalat No.1, Chittagong, Police Station-Kotwali, District-Chittagong and Another……………Respondents

Judgment

November 16, 2009.

Lawyers Involved:

Md. Khurshid Alam Khan, Advocate instructed by Md. Zahirul Islam, Advocate-on-Record-For the Petitioner.

Mamunur Rashid, Advocate instructed by Syed M. Rahman, Advocate-on-Record-For Respondent No. 2.

Not represented-Respondent No. 1.

Civil Petition for Leave to Appeal No. 831 of 2009.

(From the judgment and order dated 28.01.2009 passed by the High Court Division in Writ Petition No. 5765 of 2004.)

Judgment

Md. Abdul Matin J. – This petition for leave to appeal is directed against the judgment and order dated 28.01.2009 passed by the High Court Division in Writ Petition No.5765 of 2004 discharging the Rule arising out of Order No.60 dated 19.07.2004 issuing warrant of arrest against the petitioner in Money Execution Case No. 196 of 2003 passed by the Judge, Artha Rin Adalat No.1, Chittagong.

2. The facts, in short, are that the petition­er filed the writ petition being Writ peti­tion No. 5765 of 2004 before the High Court Division challenging the vires of Section 34 of the Artha Rin Adalat Ain, 2003 (VIII of 2003) and Ex-parte Order No.60 dated 19.07.2004 issuing warrant of arrest against the petitioner in Money Execution Case No. 196 of 2003 passed by the learned Judge, Artha Rin Adalat No. 1, Chittagong.

3. The writ respondent No.2 as plaintiff filed a suit on 28.07.1993 being Money Suit No.48 of 1990 (subsequently re-num­bered) against the defendant No.1 M/s. Hasan Cement Store, Nazirhat Bazar, Police Station-Fatikchari, District-Chittagong and others for realization of loan money of Tk.15,83,000/- (Taka fif­teen lac eighty three thousand).

4. The suit was decreed on contest with cost on 23.02.1991 with an order that the plaintiff bank is entitled to get Tk.7,34,435/- from the defendant Nos.1 and 2 who shall pay the half of the amount and the defendant No.3 shall pay the another half to the plaintiff.

5. The decree holder-bank, that is, the writ respondent No. 2, put the decree for execu­tion.

6. The respondent No.2 filed an applica­tion on 06.03.2004 before the Artha Rin Execution Court in Artha Rin Execution Case No. 196 of 2003 under Section 34 of the Ain with a prayer for warrant of arrest for civil jail against judgment debtor No. 2 allegedly for not appearing in the court despite having notice of the execution case.

7. The Artha Rin Adalat allowed the appli­cation of the decree holder-bank and thereafter the petitioner filed the writ peti­tion before the High Court Division and by the impugned judgment and order the Rule was discharged.

8. Being aggrieved by the judgment and order of the High Court Division the peti­tioner has filed this petition for leave to appeal.

9. Heard Mr. Md. Khurshid Alam Khan, learned Advocate appearing for the peti­tioner and Mr. Mamunur Rashid, learned Advocate appearing for the respondent No.2 and perused the petition and the impugned judgment and order of the High Court Division and other papers on record.

10. It appears that the High Court Division considered the prayer of the petitioner and having considered the admission of the petitioner that he has no property at all rightly held that the question of realization of the decreetal amount as per sub-section (9) of Section 34 of the Artha Rin Adalat Ain, 2003 does not arise at all.

We find that the High Court Division committed no illegality in discharging the Rule.

Accordingly the leave petition is dis­missed.

Ed.

Source : VII ADC (2010) 611

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