Agrani Bank Ltd. Vs. Kazi Mustafizur Rahman, (Sheikh Abdul Awal, J.)

HIGH COURT DIVISION

(Civil Revisional Jurisdiction)

Code of Civil Procedrue (V of 1908)

Order VII, rule

Order IX, rule 13

Artha Rin Adalat Act (IV of 1990)

Sections 6 and 7

It appears that under the Ain of 1990, if any party is aggrieved by the ex-parte decree of the Artha Rin Adalat two remedies are available to judgment debtor or aggrieved party. One, a petition under Order IX, rule 13 of the Code of Civil Procedure and the other, an appeal before the High Court Division. In both the cases deposit of half of the decreetal amount is a positive requirement and mandate. The plaintiff-opposite party without taking the remedies available to him challenged the rightness of the judgment and decree in a suit before a Court of ordinary civil jurisdic-tion. The suit, thus is clearly barred by law justifying rejection of plaint.      … (14 and 17)

49 DLR(AD)-135, 16 MLR-97, 12 MLR-73, 9 MLR-17, 18 BLD (AD)-268, 56 DLR-695, 8 MLR(AD)-01, 49 DLR (AD) 135, ref.

Mr. Md. Kamruzzaman, Advocate         

…For the Petitioner

No one appears        … For the opposite party.

Judgment

Sheikh Abdul Awal, J.

This Rule was issued calling upon the opposite party to show cause as to why the order dated 28.9.95 passed by the learned Subordinate Judge, 1^st Court, Barisal in Title Suit No. 30 of 1995 should not be set aside and / or such other or further order or orders passed as to this Court may seem fit and proper.

1. 2.      Facts necessary for disposal of the Rule are that the opposite party as sole plaintiff brought the aforesaid suit being Title Suit No. 30 of 1995 in the Court of learned Subordinate Judge, 1^st Court, Barisal impleading the petitioner-Agrani Bank as defendant praying a decree declaring the  exparte decree passed in Money Suit No. 3 of 1993 by the Artha Rin  Adalat, Barisal is illegal, collusive and not binding upon the plaintiff.
2. 3.      The defendant Agrani Bank entered appearance in the Suit and filed an application under Order VII, Rule 11 read with section 151 of the Code of Civil Procedure for rejection of the plaint stating that: “AbÑGZ Bc¡m­al ¢X¢H²l ¢hl¦­Ü Aœ¡c¡m­al ®L¡e ®j¡LŸj¡ BCeax lre£u e­qz AbÑGZ Bc¡ma BCe, 1990 à¡l¡ Eq¡ pÇf§eÑ h¡¢la h­Vz HaàÉa£a ®j¡LŸj¡ a¡j¡¢c ®c¡­o J h¡¢la h­Vz”
3. 4.      The learned Subordinate Judge, 1^st Court, Barisal by the impugned Order No. 12 dated 28.9.1995 rejected the application holding that    if the plaintiff’s allegation of non service of summon is correct, his remedy of a separate suit is not barred.
4. 5.      Being aggrieved thereby the present defendant-petitioner-Agrani Bank moved this Court and obtained the present Rule.
5. 6.      Mr. Md. Kamruzzaman, the learned Advo-cate appearing for the petitioner Agrani Bank at the very outset upon referring a number of decisions reported in 49 DLR(AD)-135, 16 MLR-97, 12 MLR-73, 9 MLR-17, 18 BLD (AD)-268, 56 DLR-695 and 8 MLR(AD)-01 submits that the proposition of law is by now well settled that no separate suit lies against the judgment and decree or order passed by the Artha Rin Adalat.
6. 7.      Drawing my attention to the provision of section 6 of the Artha Rin Adalat Ain, 1990, Mr. Md. Kamruzzaman submits that the impugned order does not reflect the true position of law and as such the same is liable to be set-aside.
7. 8.      No one has entered appearance to oppose the Rule.
8. 9.      I have considered the submission of the learned Advocate and perused the Revisional application along with other materials on record. It is found that the plaintiff-opposite party filed Title Suit No.30 of 1995 impleading the petitioner-Agrani Bank for declaration that the exparte decree passed in Money Suit No. 3 of 1993 is collusive, illegal, without jurisdic-tion and not binding upon the plaintiff.
9. 10.  Now, the only question calls for consideration in this Rule whether any separate suit lies against the judgment and decree passed by the Artha Rin Adalat. In order to resolve this point certain provisions of law are required to be referred to for having a better view of the dispute in question.
10. 11.  In this connection, I feel it proper to quote Order 7 Rule 11 of the Code of Civil Procedure at the outset which reads as follows :-
11. 12.  The Plaint shall be rejected in the following cases:-

(a)    where it does not disclose a cause of action.

(b)    where the relief claimed is undervalued , and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court fails to do so:

(c)    where the relief claimed is properly valued but the plaint is written upon insufficient stamp and the plaintiff on being required by the Court  to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so :

(d)    where the suit appears from the statement in the plaint to be barred by any law.

(Provided that the time fixed by the Court for the correction of the valuation or supplying of the requisite stamp paper shall not exceed twenty one days ).

1. 13.  From a plain reading of the aforesaid provision of law, I find that Clause (d) of Rule 11 of Order 7 is relevant for our purpose. Since, the defendant claims that the said suit is barred under the specific provision of law as contemplated under section 6 of Artha Rin Adalat Ain,1990. Therefore, I also feel it necessary to quote the aforesaid provisions of law. Section 6 of the Artha Rin Adalat Ain, 1990 reads as follows :-

“6| A_© FY Av`vj‡Zi wm×všÍ PyovšÍ| (1) aviv 7 Gi weavb mv‡c‡¶, A_© FY Av`vj‡Zi Kvh©¨aviv, Av‡`k, ivq I wWµx m¤c‡K© †Kvb Av`vjZ ev Ab¨ †Kvb KZ©„c‡¶i wbKU cÖkœ DÌvcb Kiv hvB‡e bv|Ô

(2) DcÐaviv (1) G hvnv wKQyB _vKzK bv †Kb, †Kvb A_© FY Av`vjZ KZ©„K weev`xi wei“‡× cÖ`Ë †Kvb GKZidv wWµx i` Kivi Rb¨ weev`x Code of Civil Procedure, 1908 (Act V of 1903) Gi Order IX Gi rule 13 Gi weavb †gvZv‡eK Av`vj‡Z `iLv¯Í Kwi‡Z Pvwn‡j Zvnv‡K Zvnvi wei“‡× wWµxK…Z A‡_©i AšÍZt A‡a©K A_© ev Dnvi mgcwigvb A‡_©i e¨vsK RvgvbZ `iLv‡¯Íi mwnZ Av`vj‡Z Rgv Kwi‡Z nB‡e, Ges D³i“c Rgv Kiv bv nB‡j Zvnvi `iLv¯Í Mªnb †hvM¨ nB‡e bv|”

1. 14.  From a plain reading of the above quoted provisions of the Artha Rin Adalat Ain, 1990, it appears that under the Ain of 1990, if any party is aggrieved by the ex-parte decree of the Artha Rin Adalat two remedies are available to judgment debtor or aggrieved party. One, a petition under Order IX, rule 13 of the Code of Civil Procedure and the other, an appeal before the High Court Division. In both the cases deposit of half of the decreetal amount is a positive requirement and mandate.
2. 15.  In this connection I must quote a passage from a case of Nur Islam (Md) Vs Agroni Bank reported in 49 DLR (AD) 135 for having a better view in the dispute in question which reads as follows:

Mr. AKM Nurun Nabi Khan, learned Advocate appearing for the petitioner, contends that when the petitioner-defendant challenged the exparte decree on the ground of fraud his application under section 151 CPC is quite maintainable. We do not find any substance in this contention, for the Artha Rin Adalat Act specifically provides for only two remedies against an exparte decree. It is either by an application or by an appeal; but in both the cases deposit of 50% of decretal amount is necessary. To avoid this deposit, it appears, the petitioner has sought a short-cut by invoking section 151 CPC which is not applicable in such a situation. The application under section 151 is found to have been rightly dismissed.

(The under linings are mine)

1. 16.  In the case  being M. Tariqullah Sikder Vs. Sonali Bank reported in 56 DLR(2007)695 also provides similar feature to the effect that provision of Section 6 of the Artha Rin Adalat  Ain 1990 bars instituting of separate suit to set aside exparte decree passed by Artha Rin Adalat. Only available  scope for setting aside ex-parte  decree passed by Artha Rin Adalat in Artha Rin case is to file miscellaneous case under Order IX  rule 13 of the Code of Civil Procedure  by deposit of 50% of decreetal amount or in the alternative in the appeal as contemplated under the said Ain.
2. 17.  As, I have already noticed that in this case the plaintiff-opposite party without taking the remedies available to him challenged the rightness of the judgment and decree in a suit before a Court of ordinary civil jurisdiction. The suit, thus is clearly barred by law justifying rejection of plaint.
3. 18.  For the reasons stated above, I am inclined to hold that the learned Assistant Judge seriously erred in law in passing the impugned order without properly applying his judicial mind into the facts and circumstances of the case and law bearing on the subject and the same has resulted in an error in the impugned decision occasioning failure of justice.
4. 19.  In the result, the Rule is made absolute. The impugned order dated 28.9.95 passed by the learned Subordinate Judge, 1^st Court, Barisal in Title Suit No. 30 of 1995 refusing to reject plaint stands set-aside. Plaint of Title Suit No. 30 of 1995 of the said Court stands rejected.
5. 20.  The order of stay granted earlier by this Court so far it relates to Execution Case No. 19 of 1994 arising out of Money Suit No. 03 of 1993 pending in the 1^st Court of learned Subordinate Judge, and Artha Rin Adalat, Barisal stands vacated.

The Artha Rin Adalat concerned is directed to proceed with the Money Execution Case No. 19 of 1994 arising out of Money Suit No. 03 of 1993 expeditiously.

Ed.