Mohammad Abdur Rouf J
Bimalendu Bikash Roy Choudhury J
ACKO Industries and Cold Storage Ltd. and another……..Appellants
Pubali Bank Ltd. and others…….Respondents
August 7, 1997.
Abdul Wahab, Advocate instructed by Miah Abdul Gafur, Advocate-on-Record – For the Appellants.
Sharifuddin Chaklader, Advocate-on-Record – For the Respondent No. 1.
Not represented – Respondent Nos. 2-7.
Civil Appeal No. 48 of-1996
(From the Judgment and Order dated 11th & 18th July, 1996 passed by the High Court Division in F.A.T. No. 177 of 1997).
Mohammad Abdur Rouf J. – The defendant appellants have preferred this appeal have on from the Judgment and order dated 18.7.96 passed by a Division Bench of the High Court Division rejecting the Memo of Appeal, F. A. T. No. 177 of 1996, on the ground that the half of decretal amount which were required to be deposited under the provision of Artha Rin Adalat Act, 1992 was not paid in time before filing the Memo of appeal.
2. The relevant facts are: – The plaintiff respondent No. 1- Pubali Bank got a money decree on 29.1.96 from Artha Rin Adalat, Dhaka in Money Suit No. 214 of 1990 against the appellants for realisation of a sum of Tk. 207,803.64 paisa with cost as well as 20% interest from 22.12.86 till realizations of the decretal amount On 24.4.96 the appellants filed Memorandum of Appeal in the High Court Division against the said money decree and it was registered as F.A.T. No. 177 of 1996. The Taxing Officer of the High Court Division detected that the plaintiff decree holder did not pay proper court fees in the trial court and accordingly by a report dated 8.5.96 the Stamp Reporter of the High Court Division reported that instead of court fees of Tk. 8,244/- as per valuation of the suit, the plaintiff paid court fees of Tk. 7,100/- and thereby there had been a deficit court fees of Tk. 1064/-, realisable from the plaintiff respondent. Upon the said report the Registrar of the Supreme Court by his order dated 11.6.96 send down the decree to the trial court for correction upon realisation of the said deficit court fees of Tk. 1064/- from the plaintiff decree holders. On 3.9.96 the decree holder deposited the said deficit court fees in the trial court. It appears that the trial court initially signed the decree on 7.2.96 calculating the realisable costs of the suit at Tk. 8,845/- including the court fees of Tk. 7,180/- and the decree was seal (as it appears from the paper book) on 18.2.96. The High Court Division by its office Memo. No. 1023 dated 20.6.96 send down the decree to the trial court. In pursuance thereof upon realisation of the deficit court fees from the plaintiff decree holder the trial court corrected the decree by its order dated 3.9.96. In the meantime the appellants by Chalan No. 13374 dated 23.5.96 deposited in Bangladesh Bank, Sadarghat Branch Dhaka half of the decretal amount as well as the costs of the suit, as assessed by the trial court as per decree signed on 7.2.96 amounting to Tk. 1,8,324/32 paisa, on 21.9.96 the defendant filed an application in the trial court for accepting the deposit of 50% of Tk. 1064/-. That is the deficit court fees paid by the plaintiff as part of the decretal costs and accordingly by Chalan No. 3183 dated 21.9.96 deposited Tk. 532/- in Banlgadesh Bank Sadarghat Branch, Dhaka in the account of the aforesaid money suit, Defendant No. 1 on 30.9.96 filed an application before the trial court praying for transmitting the decree in question to the High Court Division and accordingly corrected the decree was send back to the High Court Division.
3. On 30.6.96 the appellant filed an application before the High Court Division under Sections 148/149 read with Section 151 of the Code of Civil Proceeding praying for acceptance of the deposit of half of the decretal amount and the costs as deposited in the trial Court on 23.5.96 stating inter alia, that due to abnormal situation, created during the non-cooperation movement, prevailing at the relevant time in Dhaka City, they failed to deposit the amount before filing the Memo, of appeal in the High Court Division on 24.4.96 and that as per Stamp Reporter’s report dated 8.5.96 it appeared that the plaintiff respondents did not pay proper court fees in the trial court and the Registrar of the Supreme Court of Bangladesh by an order dated 11.6.96 directed the trial court to realise the deficit court fees of Tk. 1064/- from the plaintiff decree holder and to correct the decree accordingly. In the circumstances, the appellant prayed in the application for registration of the appeal. A Division Bench of the High Court Division by an order dated 18.7.96 rejected the said application of the appellant as well as the Memo of appeal holding, inter alia, that half of the decretal amount having not been deposited within time by the appellant as, required under Sub-Section 2 of Section 7 of the Artha Rin Adalat Act, 1992, the appeal was not entertainable. Mr. Abdul Wahab, learned Advocate appearing for the defendant appellants submits that the appellants preferred the appeal in the High Court Division within time but due to the then prevailing abnormal situation in the country for policed unrest the appellants could not make deposit of 50% of the decretal amount as was required to be deposited under Sub-Section 2 of Section 7 of the Act in the trial court prayed for extension of time before the High Court division to make such deposit and accordingly the High Court Division allowed time and thereafter the appellants make the deposit of the required amount by bank chalan on 23.5.96 and thereafter by filing an application on 30.6.96 under section 148/149 read with Section 151 of the Code of Civil Procedure prayed for registration of the appeal but the learned Judges of the High Court Division upon taking an erroneous view that the Artha Rin Adala Act being a special law Section 5 of the Limitation Act having not been made expressly applicable by the said Act rejected the application as well as Memo of the appeal Although Memo of appeal was filed in the High Court Division within time. The learned Advocate further submits that the learned Judges of the High Court Division committed an error of law in not considering that the decree in question was corrected by the trial Court on 3.9.96 upon accepting the deficit court fees from the plaintiff decree holders and as such the learned Judges of the High Court Division acted illegally and not treating that the appellants although preferred the appeal on 24.4.96 the appeal in time upon compliance with the provision of Sub-Section 2 of Section 7 of the Act within time and in accordance with law.
3. Mr. Sharifuddin Chaklader, learned Advocate appearing for the plaintiff respondent No. 1, on the other hand, submits that the impugned decree was passed on 29.1.96 and the decree was signed by the trial Court on 7.2.96 but the appellants did not prefer the appeal within 30 days of the passing of the decree upon making the deposit of 50% of the decretal amount in trial court who deposited the said amount on 23.5.96 long after the prescribed period and as such the learned Judges of the High Court Division rightly rejected the Memo of appeal.
4. Mr. Abdul Wahab, learned Advocate appearing for the appellants submits that under the Ordinance the appellants were to prefer appeal against an illegally passed decree by the Artha Rin Adalat. The decree originally prepared and singed on 7.2.96. In pursuance of the judgment dated 29.1.96 passed in the money suit which having not been drawn in accordance with law the High Court Division send it down to the trial court for correction of decree upon realisation of deficit court fees from plaintiff respondents and accordingly the decree in accordance with law was corrected on 3.9.96. The appellants, however, on 24.4.96 filed the Memorandum of appeal in the High Court Division on 23.5.96 deposited 50% of the decretal amount and the costs as assessed by the trial Court in the original decree upon the necessary correction of the decree on 3.9.96 by the trial court he on 21.9.96 deposited further amount of money as 50% of the deficits court fees.
5. The learned Advocate submits that the learned Judges of the High Court Division erred in law in not holding that the limitation of the preferment of the appeal against the decree in question was counted from 3.9.96 when the decree was corrected not from the date when the decree in signed on 7.6.96. The learned Advocate also submits that the learned Judges of the High Court Division misdirected themselves upon taking an erroneous view that delay in filing the appeal in the High Court Division or making the necessary deposit of the decretal amount as per provision of Section 7 of the Ordinance could not be condoned in view of the fact that the Ordinance is a special law and no express provision made therein making section 5 of the Limitation Act is an applicable in the preferment of the appeal under the Ordinance although the appellants preferred the appeal on 24.4.96 and making the required deposit of the decretal amount on 23.5.96 i.e. long before the decree in question was prepared in accordance with law that is to say when the decree was corrected on 3.9.96. Section 7 of the Ordinance provides that no appeal from the decree of the Artha Rin Adalat to be entertain able unless at least 50% of the decretal amount is deposited before in the trial court filing such appeal and as such the appeal shall be preferred within 30 days from the judgment and decree appealed from. It is true that the appellants preferred the appeal beyond 30 days from the day when initial decree was signed on 7.2.96 even without making deposit of the required 50% of the decretal amount of the trial court. But so far in the instant case is concerned a wrong decree was prepared and singed on 7.2.96 upon an incorrect certificate given by the trial court in its judgment dated 29.1.96 that the proper court fess have been paid by the plaintiff decree holders although the decree holders did not pay the proper court fees which was required to be paid under the court Fees Act. Thus, in the facts and circumstances of the present case, the learned Judges of the High Court Division ought to have treated that the legal decree in the instant suit had been prepared and singed by the trial Court on 3.9.96 when the original decree was correct upon realisation of deficit court fees from the plaintiff decree holders on the direction of the High Court Division and in that view of the matter, the appeal of the appellants in the High Court Division was neither barred by limitation nor improper for not making the required deposit of at least 50% of the decretal amount in the trial court as per provision of Section 7 of the Ordinance. In view of the matter, we allowed this appeal without any order so to costs and set aside the impugned judgment and order of the High Court Division and direct the High Court Division to register the appellants appeal preferred before him.
Source : II ADC (2005) 380