MM Ruhul Amin CJ
Mohammad Fazlul Karim J
Md. Tafazzul Islam J
Md. Joynul Abedin J
The City Bank Limited…………………………………Petitioner
Judge, Artha Rin Adalat, Barisal and others……….Respondents
January 25, 2009.
Md. Abdun Nur, Advocate-on-Record-For the Petitioner.
Harun-or-Rashid, Advocate, instructed by Haridas Pal, Advocate-on-Record-For the Respondent.
Civil Petition for leave to Appeal No.1414 of 2007.
(From the judgment and order dated 27.08.2007 passed by the High Court Division in Writ Petition No.7370 of 2007)
Md. Tafazzul Islam J. – This petition for leave arises out of the judgment and order dated 27.08.2007 of the High Court Division passed in Writ Petition No.7370 of 2007 rejecting the writ petition summarily.
2. The petitioner filed the above writ petition on the averments that they filed Artha Rin Suit No. 03 of 2006 in the Court of Judge, Artha Rin Adalat, Barisal praying for recovery of Tk. 33, 22,100/01 from the respondent Nos. 3 and 4 by sale of mortgaged properties and the respondent No.2, also filed Artha Rin Suit No.06 of 2006 in the same Court praying for recovery of Tk.1,11,52,626/- from the respondent No.3 by sale of the same very mortgaged properties and the petitioner after coming to know about the above instantly filed an application in the above Artha Rin Suit No. 6 of 2006 under Order 1, Rule 10 of the Code of Civil Procedure read with section 57 of the Artha Rin Adalat Ain, 2003 praying for adding them as party in the above suit stating that the properties describes in schedule Kha (1) of both the suits were mortgaged with the petitioner on 12.08.1997 by a registered deed of mortgaged dated 12.08.1997 accompanied by a registered power of attorney and also by deposit of original title deeds and that schedule Kha (2) of Artha Rin Suit No. 03 of 2006, which corresponds to schedule Kha (3) of Artha Rin Suit No. 06 of 2006, also contains the properties mortgaged with the petitioner by registered deed of mortgage dated 07.08.2002 accompanied by a registered power of attorney and also by depositing original title deeds.
3. The learned Artha Rin Adalat, after hearing, by judgment and order dated 18.06.2007, rejected the above application for addition of party holding that the respondent Nos. 3 and 4 did not take any loan from the petitioner and the petitioner is also not a guarantor against the loans so taken and so the petitioner is not a necessary party in the above suit and further in the above suit it is not an issue as to in favour of which bank the respondent No. 3 mortgaged the land in question as security and if mortgaged when and the main issue in the above suit is whether the petitioner will get Tk.1,11, 2626/- from the respondent No. 4
and further the respondent No. 2 will get decree only to the extent of claim as they may prove and accordingly in the above suit there is no scope to decide the claim of the petitioner. Being aggrieved the petitioner moved the High Court Division in writ jurisdiction and after hearing the High Court Division summarily rejected the writ petition holding that the contention of the learned advocate of the petitioner that having the first charge over the mortgaged property the petitioner is a necessary party in the subsequent suit filed by the respondent No. 2, is not tenable in the eye of law as in the subsequent suit the only issue for adjudication is whether the respondent No. 4 owes any money to the respondent No. 2 and to adjudicate this issue the presence of the petitioner is not necessary at all and the petitioner can make prayer to the Artha Rin Adalat concerned at proper stage for satisfaction of its decreetal amount first from the proceeds of the sole of the mortgaged properties in question and the Artha Rin Adalat concerned may consider that prayer under section 57 of Artha Rin Adalat Ain, 2003.
4. We have heard the learned counsel and perused the impugned judgment and order of the High Court Division and other connected papers.
5. We are of the view that the High Court Division on proper consideration of the materials on record arrived at a correct decision and there is no illegality or infirmity in the above decision so as to call for any interference.
The petition is dismissed.
Source : VI ADC (2009) 563