Mohammad Fazlul Karim CJ
Md. Abdul Matin J
ABM Khairul Haque J
Md. Muzammel Hossain J
Surendra Kumar Sinha J
Md. Abdur Rouf …………………….Petitioner
The Judge of Artha Rin Adalat No.1, Dhaka, Judge Court Compound, P.S. Kotwali, District-Dhaka and others …………………Respondents
March 18, 2010.
Nurul Islam Bhuiya, Advocate-on-Record-For the Petitioner.
Chowdhury Md. Zahangir, Advocate-on-Record-For Respondent Nos.3-12.
Not represented-Respondent Nos.1-2.
Civil Petition for Leave to Appeal No.299 of 2009.
(From the judgment and order dated 06.01.2009 passed by the High Court Division in Writ Petition No.7729 of 2008.)
Md. Abdul Matin J. – This petition for leave to appeal is directed against the judgment and order dated 06.01.2009 passed by the High Court Division in Writ Petition No.7729 of 2008 discharging the Rule.
2. The facts, in short, are that the respondent No.2-Bank as plaintiff instituted Title Suit No.270 of 1986 in the Court of the learned Subordinate Judge and Commercial Court No.1, Dhaka for realization of Tk.2, 52,268.50 only as on 30.08.1986 by selling the mortgaged property owned by the defendant the present petitioner. The petitioner as first partner of M.S. Standard Radio Emporium borrowed a sum of Tk.2.00 lac as cash credit (Hypothecation loan) from the plaintiff-respondent No.2 Bank. But the petitioner could not repay the loan due to malpractices of other partners and the business of the petitioner collapsed. The respondent No.2 Bank instituted the aforesaid title suit for recovery of money. The defendant petitioner contested the suit by filing written statements. Thereafter the suit was decreed on contest in the preliminary from on 22.03.1989 vide judgment and order dated 12.03.1989 and the final decree was passed on 11.05.1989. The respondent preferred First Appeal No.75 of 1990 against the aforesaid preliminary decree dated 23.03.1989 and final decree dated 11.05.1989. The respondent bank entered appearance in the aforesaid first appeal and the appeal was proceeding accordingly. The learned lawyer for the petitioner failed to take necessary steps for preparation of the paper book as per order dated 24.01.2000 within 12 weeks with a default order to the effect that in default the appeal shall stand dismissed. The petitioner filed an application for restoration of the said First Appeal No.75 of 1990 and the High Court Division was pleased to vacate the dismissal order dated 24.01.2000 and the appeal was restored to its original file and number.
3. The respondent Bank filed Title Execution Case No.40 of 1989 on 17.06.1989 in the Court of the learned Subordinate Judge and Commercial Court No.1, Dhaka for recovery of Tk. 3, 95,956.00 only by selling the mortgaged property measuring 9 decimals of land appertaining to C.S. Plot No.804, R.S. Plot No.2923 under C.S. Khatian No.64, D.P. Khatian No.170, Mutation Khatian No.173/2 of mouza, Jatrabari under P.S. Demra at present Jatrabari, District-Dhaka with structures and fixtures standing thereon.
4. The judgment-debtor-petitioner on 06.10.1994 filed an application for staying further proceedings of the Title Execution Case No.40 of 1989 till disposal of First Appeal No.75 of 1990 (F.A.T.No.512 of 1980) and the executing court by his order dated 14.01.1996 rejected the application for stay. The petitioner sought advice of the filing lawyer of the first appeal in the High Court Division and the lawyer for the petitioner advised him that it is needless to take any steps in the execution case since the decree is under challenge and the appeal is the continuation of the suit and the respondent bank is already on record. The petitioner at the advice of his engaged lawyer did not take effective steps in the execution case. The petitioner acted bonafide as per advice of his engaged lawyer of the High Court Division as well as in the District Court.
5. The final decree was passed on 11.05.1989 and the maximum period of limitation i.e. 12 years passed on or before 11.05.2001 and the respondent bank knowing fully well that the execution case is time barred even then proceeded with execution case and the executing court by his order No.78 dated 12.08.2003 suo moto converted the Title Execution case No. 40 of 1989 as Artha Zari Case No.40 of 1989 under Section-60(6) of the the Artha Rin Adalat Ain, 2003. The decree-holder bank (respondent No. 2) filed numbers of applications and took several steps in Artha Rin Adalat Ain, 2003 and directed the decree-holder bank to take steps under Section 30 of the execution case and on 13.02.2006 filed an application for issuance of certificate of title under Section 33(7) of the Artha Rin Adalat Ain, 2003 and the learned Judge, Artha Rin Adalat No.1, Dhaka by his order dated 14.03.2006 allowed the prayer and by his order dated 14.03.2006 issued the impugned certificate of title under Section 33(7) of the Artha Rin Adalat Ain, 2003 and the certificate was registered with Sub-registrar office Demra vide deed No.15 of 2006 dated 31.05.2006. The executing court by his order No. 98 dated 07.06.2006 disposed of the execution case under Section 33(9) of the Artha Rin Adalt Ain, 2003.
6. The decree-holder bank filed an application dated 02.07.2008 praying for withdrawal of the original certified copy of the decree for filing second execution case under the provisions of Section 28(3) of the Artha Rin Adalat Ain, 2003 and the prayer was allowed vide order No.99 dated 02.07.2008.
7. The respondent bank without filing second execution case filed an application under Section 33(7Ka) of Artha Rin Adalat Ain (amendment Ordinance No.39 of 2007 dated 23.13.2007) for giving delivery of possession of the property under registered certificate of title being deed No. 15 of 2006 dated 31.05.2006 and the prayer was allowed vide order No. 101 dated 10.09.2008. Thereafter, the decree-holder bank on 23.09.2008 filed another application for police force and the executing court fixed up on 12.10.2008 for order. The decree-holder (respondent No.2 bank) filed an application dated 12.10.2008 for deployment one platoon police force in order to give delivery of possession of the decree-holder by evicting the judgment debtor petitioner.
8. The judgment debtor petitioner filed an application dated 23.09.2008 for stay of all further proceedings of the said execution case till disposal of the First Appeal No.75 of 1990 pending before the High Court Division. The learned Judge, Artha Rin Adalat No.1, Dhaka fixed the case on 12.10.2008 for hearing of the said application.
9. The judgment debtor petitioner filed an application dated 12.10.2008 under Section 19(1) read with Section 57 of the Artha Rin Adalat Ain, 2003 praying for passing an order for payment of the decreetal amount by installments as provided under Section 49(1) of the Artha Rin Adalat Ain, 2003 under compelling circumstances although the proceeding of execution came to an end on 07.06.2008. The executing court rejected the prayer by the impugned order No.104 dated 12.10.2008.
10. Thereafter the petitioner moved the High Court Division by filing the aforesaid writ petition and the High Court Division discharged the Rule by the impugned judgment and order.
11. Being aggrieved by the judgment and order of the High Court Division the petitioner has preferred this petition for leave to appeal.
12. Heard Mr. Nurul Islam Bhuiya, the learned Advocate-on-record appearing for the petitioner and Mr. Chowdhury Md. Zahangir, the learned Advocate-on-Record appearing for respondent Nos.3-12 and perused the petition and the impugned judgment and order of the High Court Division and other papers on record.
13. It appears that the decree in question was put into execution within time when the Artha Rin Adalat Ain came into force on 01.05.2003. Section 60 of the Ain provides that all the pending cases under the previous law shall be transferred to Artha Rin Adalat and shall be proceeded with.
14. In such view of the matter Section 48 of the Code of Civil Procedure has no manner of application in this case.
We find no substance in this petition which is accordingly dismissed.