M. A Salam and Co. Vs. Islami Bank Bangladesh Limited, 2009

 Supreme Court

Appellate Division

(Civil)

Present:

Md. Tafazzul Islam J

Md. Abdul Matin J

Md. Abdul Aziz J

M/S M A Salam and Co………………..Petitioner

Vs

Islami Bank Bangladesh Limited repre­sented by its Executive Vice-President Head Office, 49, Dilkush Commercial Area, Dhaka and others……….Respondents

 Judgment          

May 12, 2009.

Lawyers Involved:  

Moudud Ahmed, Senior Advocate, instructed by Saidur Rahman, Advocate-on-Record-For the Petitioner.

A. J. Mohammed Ali, Senior Advocate, instructed by Syed Mahbubar Rahman, Advocate-on-Record-For Respondent No. 2.

Not represented-Respondent No. 1, 3, 5.

Mahmudul Islam, Senior Advocate, instructed by Syed Mahbubar Rahman, Advocate-on-Record-For Addition Party.

Civil petition for leave to Appeal No.1287 of 2008.

(From the judgment and order dated 04.06.2008 passed by the High Court Division in writ Petition No.4070 of 2008.)

Judgment

 Md. Abdul Matin J. – This petition for leave to appeal is directed against the judgment and order dated 04.06.2008 passed by the High Court Division in writ petition No. 4070 of 2008 summarily rejecting the above writ petition.

2. The facts, in short, are that the petition­er filed writ petition No.4070 of 2008 stating, inter alia, that the execution case was once disposed of finally on compro­mise and thereafter it was again restored by the Judge of the Artha Rin Adalat con­cerned illegally and as such all the orders passed in this execution case after its restoration are illegal. The District Judge, Chittagong illegally appointed one Additional District Judge as Judge of this Artha Rin Adalat No.1, Chittagong and as such the orders passed by this Additional District Judge in this Artha Rin Execution Case are illegal and that the auction sale of the mortgaged proper­ty of this petitioner was held in pursuance of the illegal orders passed by that Additional District Judge and as such this auction sale also is illegal.

3. The High Court Division by the impugned judgment and order summarily rejected the petition and hence this peti­tion for leave to appeal.

4. Heard Mr. Moudud Ahmed, the learned Counsel appearing for the petitioner and Mr. A. J. Mohammad Ali, the learned Counsel appearing for the respondent and Mr. Mahmudul Islam, learned Counsel appearing for added respondent and perused the petition and the impugned judgment and order of the High Court Division and other papers on record.

5. Mr. Moudud Ahmed, the learned Counsel appearing for the petitioner mainly argued that as per the agreement dated 16th of April, 2006 on the basis of which the execution case was disposed of, the petitioner was at liberty to deposit the decreetal amount within 12 months from the date of judgment  i.e. on 15.05.2006 but the respondent filed the application for revival of the execution case  on  07.02.2007   long  before  the expiry of 12 months and therefore the revival of execution case was without any lawful authority.

6. Mr. Mahmudul Islam, the learned Counsel appearing for the added respon­dent concedes that on 07.02.2007 the application for revival of the execution case was premature but on 22.07.2007 when admittedly the present petitioner judgment debtor admitted that the decree­tal amount was not paid and prayed for time the execution case became a mature one because it was long after 12 months and therefore the contention raised by the learned counsel for the petitioner has no substance.

7. We find substance in the submission of Mr. Mahmudul Islam and hold that the execution case was not at all premature. The next contention that the executing court had no authority to   pass   the impugned order has been correctly decid­ed by the High Court Division holding that the learned Additional District Judge did not adjudicate in the matter and he only allowed certain adjournments and issued notices and subsequently he was replaced by the Joint District Judge as Artha Rin Adalat and therefore the alle­gation that the court had no jurisdiction has been rightly rejected by the High Court Division.

8. The learned counsel lastly argued that the revival of the execution case was unauthorized. It appears that in the agree­ment the parties stipulated as under:-

“That in case of violation of any of the condition or conditions of this agree­ment or failure to pay/deposit in D. Hr. Bank sum of Tk. 22, 56, 75, 512, 02 as mentioned in para 5 (a) above that is to say to pay Tk. 21,53,71,800.02 and Tk.1,03,711.00 against bank’s claim in Artha Rin Suit No. 29 of 2005 and 56 of 2005 respectively with further costs and charges, the facilities of remission of total profits compensation allowed by the bank shall be automatically can­celled and the plaintiff/ decree holder shall be entitled to recover from the judgment debtors Tk. 51,53,81,735.02 against the Artha Rin Suit No. 29 of 2005 and Tk. 2,53,29,974.00 against Artha Rin Suit No. 56 of 2005 with all further compensation, cost & expenses by proceeding with execution cases and judgment debtors will not raise any objection.”

9. From the very terms of the agreement it appears that the decree holder reserved the right to proceed with the execution cases and therefore the revival ha been done in terms of the agreement as admittedly the present petitioner, judgment debtor, failed to comply with the terms of the   agree­ment by paying the decreetal amount.

We find no substance in this petition which is accordingly dismissed.

Ed.

Source : VI ADC (2009) 797

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