Md. Bodiuzzaman Milon Vs.Bangladesh Commerce Bank Limited and another (Md. Abu Zafor Siddique J.)

HIGH COURT DIVISION

(Civil Revisional Jurisdiction)

Code of Civil Procedur (V of 1908)

Section 115

Artha Rin Adalat (viii of 2003)

Section 44(2) 

Taking into consideration of the provisions of section 44(2) of the Artha Rin Adalat Ain, 2003 as well as the decision given by Apex Court, the impugned orders are being interlocatory orders are not maintainable under section 115 of the Code..                                                                                ….(27)

New Ideal Engineering Works Ltd. Vs. Bangladesh Shilpa Bank and others, 42 DLR (AD) 221; Sultana Jute Mills Ltd. and others Vs. Agrani Bank and others, 46 DLR (AD) 174; Mrs. Hosne Ara Begum and another Vs. Islami Bank Bangladesh Limited, 5 MLR (AD) 290; Md. Harun-or Rashid Vs. Pubali Bank Limited and others, 12 MLR (AD) 343; Kazi Gowaherul Islam (K J Islam) vs. Standard Co-operative Credit Society Ltd. and another, 50 DLR 333, Belayet Hossain vs. Bank Indosuez, 50 DLR 431; Iftekhar Afzal and another vs. Publi Bank Limited and others, 50 DLR 623; Syed Monjur Morshed and another vs. Manager, Agrani Bank Ltd., 14 BLC 501 ref.

Judgment

Md. Abu Zafor Siddique,  J:           

All these Rules were heard together and disposed of by a common judgment as they do involve similar questions of facts and laws though the parties are different.

1. 2.             In Civil Revision No. 1454 of 2009, Rule was issued calling upon the opposite parties to show cause as to why the impugned order No.47 dated 23.10.2008 passed by the learned Joint District Judge, and Artha Rin Adalat, Court No.02, Dhaka in Artho Execution Case No. 18 of 2003 should not be set aside and/or such other or further order or orders passed as to this Court may seem fit and proper.
2. 3.             In Civil Revision No.1318 of 2009, Rule was issued calling upon the opposite parties to show cause as to why the impugned order No.54 dated 23.10.2008 passed by the learned Joint District Judge, Court No. 2, Dhaka in Artha Rin Jari No.15 of 2003 should not be set aside and/or such other or further order or orders passed as to this Court may seem fit and proper.
3. 4.             In Civil Revision No.195 of 2010, Rule was issued calling upon the opposite party to show cause as to why the Order No.17 dated 03.08.2008 passed by the learned Additional Joint District Judge (Artha Rin Adalat), Jessore in Money Execution Case No.07 of 2007 should not be set aside and/or such other or further order or orders passed as to this Court may seem fit and proper.
4. 5.           In all these revisional applications the common fact is that the respective opposite parties namely different financial institutions instituted “Artha Rin Suits” in the respective Artha Rin Adalat impleading the respective petitioners and others as the defendants for realization of loan amount. In all these cases the plaintiffs-opposite-parties obtained decree against the defendants and pursuant to the decrees obtained by them they have filed execution cases as per the provision of Artha Rin Adalat Ain of 2003 (shortly the Ain of 2003) in the respective Artha Rin Adalat (shortly the Adalat) as define in section 2(kha) of the 2003. During pendency of the respective Artha Rin Execution cases, the respective decree holder banks filed applications under section 34 of the Ain of 2003 for detaining the petitioners in civil jail, in order to realize the decreetal amount. In all these revisional applications before this Court, the petitioners have challenged the orders passed by the Adalat directing to detain the respective petitioners as per section 34 of the Ain of 2003. Being aggrieved by and dissatisfied with the aforesaid orders passed by the court below the respective petitioners moved these applications and obtained the present Rules.
5. 6.             In Civil Revision Nos. 1454 of 2009 and 1318 of 2009 Mr. Md. Nurul Amin, the learned Advocate appearing on behalf of the petitioners submits that the Court below without applying its judicial mind and without considering the facts and circumstances and the provision of law most illegally and in an arbitrary manner passed the impugned judgment and orders and thereby the Court below committed error occasioning failure of justice. He further submits that in the case in hand the Court below without complying with the provision of section 34(9) of the Ain of 2003 passed the impugned judgment and order and thereby committed error of law occasioning failure of justice. He further submits that the Court below without issuing any notice or giving any opportunity of being heard passed the impugned judgment and orders and thereby the Court below not only committed an error of law but also violated the principle of natural justice. However, he submits that the petitioner could have preferred writ petition before this court challenging the impugned order because the question of maintainability of the instant Revisional applications is involved. He also prays for a direction from this court enabling the petitioner to approach the proper forum.
6. 7.             Mr. Md. S.M. Maniruzzaman with Mr. M. Ataul Gani, the learned Advocate appeared on behalf of the petitioner in Civil Revision No.195 of 2010.  He, however, adopted the submission made by Mr. Md. Nurul Amin, the learned Advocate.
7. 8.             Mr. Shahajada Al Amin Kabir, the learned Advocate appearing on behalf of the opposite party in Civil Revision No.1454 of 2009 and Civil Revision No.1318 of 2009 vehemently opposes the Rule and submits that the Court below in the cases in hand committed no error of law occasioning failure of justice in passing the impugned judgments and orders and as such all these Rules are liable to the discharged with costs. By referring to the provision of the Ain of 2003 he submits that the revisional applications under section 115 of the Code of Civil Procedure is not at all maintainable as no revision lies against any interlocutory order passed by the Adalat  exercising the power conferred by the Ain of 2003.
8. 9.             No one appear on behalf of the opposite party Civil Revision No.195 of 2010.
9. 10.          We have heard the learned Advocates, perused the revisional applications, impugned judgments and orders, annexures and the provision of law.
10. 11.          On perusal of the same it appears that in all these Rules the opposite parties instituted suits in the respective Adalats for realization of outstanding loan from the borrower petitioners and after due process of law the respective courts passed decrees in favour of the opposite parties. Pursuant to the provisions laid down in the Ain of 2003, the respective opposite party instituted execution cases as per Chapter-VI of the Ain of 2003. Thereafter, the Courts below proceeded with the execution cases in the respective Artha Rin Adalat. During pendency of the execution cases on the applications made by the opposite parties the Courts below passed the impugned judgment and orders for detaining the respective petitioners in civil jail. Being aggrieved the petitioners moved this Court.
11. 12.          Section 34(1) of the Ain, 2003 deals with the provision relating to detaining any person in civil jail which runs as follows;

“34| (1) Dc-aviv (12) Gi weavb mv‡c‡¶, A_© FY Av`vjZ, wWµx`vi KZ©„K `vwLjK…Z `iLv‡¯Íi cwi‡cw¶‡Z, wWµxi UvKv cwi‡kv‡a eva¨ Kwievi cÖvqm wnmv‡e, `vwqK‡K 6 (Qq) gvm ch©šÍ †`Iqvbx KvivMv‡i AvUK ivwL‡Z cvwi‡e|”

1. 13.          It appears that from the above provision  of law the Court namely “Artha Rin Adalat” can pass an order detaining a judgment debtor in civil jail up to 6 (six) months  for realization of outstanding dues. It appears that in the present cases in hand the Courts below passed the orders on the basis of the applic-ations made by the respective Banks. On perusal of the same it is apparent that the Courts below namely “Artha Rin Adalats” reserve the powers to detain a person for the period stipulated in sub-section (1) of section 34.
2. 14.          Hence, the main question which is to be decided in these revisions is whether the instant revisional applications under section 115(1) of the Code of Civil Procedure are at all maintainable against any interlocutory order passed by the Artha Rin Adalat exercising the powers conferred by the provisions of the Ain of 2003. It is apparent that the instant proceedings are pending being Artha Rin Execution Cases and before the competent Artha Rin Adalat established as per section 2(kha) read with section 4 of the said Ain of 2003. Apart from that as per section 5 of the Ain of 2003, the Court enjoys exclusive jurisdiction relating to all matters for realization of loan of the financial institutions as defined in section 2(ka) of  the said Ain.
3. 15.          Section 26 to section 39 of the Ain of 2003 deal with the detailed provisions relating to execution proceeding by a Artha Rin Adalat and these provisions described the procedure for realization of the loan after passing of decree by the Adalat. There is no doubt about the jurisdiction of the Court, in which the execution cases have been filed and proceeded. As per the Ain of 2003 all these Courts are, “Artha Rin Adalat”. Section 2(kha) of the said Ain runs as follows;

“(L) ÔÔAv`vjZÓ ev ÔÔA_© FY Av`jZÓ A_© GB AvB‡bi D‡Ïk¨ c~iYK‡í aviv 4 G Dwjø­wLZ Aaxb cÖwZwôZ ev †NvwlZ †Kvb Av`vjZ A_ev A_© FY Av`vjZ wnmv‡e MY¨ nB‡e g‡g© †Kvb hyM¥-†Rjv R‡Ri Av`vjZ|”

1. 16.          Now it is to be seen whether impugned orders passed by the executing Court in the present Artha Rin Execution Case are revisable under section 115(1) of the Code of Civil Procedure and as such, the said issue needs to be dealt with before entering into the merit of the cases.

Section 3 of the Ain of 2003 reads as follows:

ÔÔ3| AvB‡bi cÖavb¨- AvcvZZt ejer AeÉ †Kvb AvB‡b wfbœZi hvnv wKQyB _vKzK bv †Kb, GB AvB‡bi weavbvejxB Kvh©Ki nB‡e|Ó

Furthermore, section 26 of the Ain of 2003 runs as follows:

26 | †`Iqvbx Kvh©wewa AvB‡bi cÖ‡qvM- The Code of Civil Procedure, 1908 Gi Aaxb gvwb wWµx Rvix msµvšÍ weavbejx, GB AvB‡bi weavbejxi mwnZ AmsMwZc~b© bv nIqv mv‡c‡¶, GB AvB‡bi Aaxb wWµx Rvixi †¶‡Î cÖ‡hvR¨ nB‡e|Ó

1. 17.          It is important to mention that in promulgating this “Remedial Statute”, the Ain of 2003, the legislature has intended to cure some defects, errors and procedures of the repealed Artha Rin Adalat Ain,1990, in order to ensure speedy recovery of long pending outstanding dues advanced by the financial institutions to the borrowers who are in the habit of developing a culture of non-payment of loan. To put an end to such culture some special provisions have been made including rigorous provisions like sections 19, 34, 41, 42 and44 in the Ain, 2003. If the defaulters or borrowers are allowed to challenge each and every order passed by the Adalat, the Ain of 2003 will have to face the same consequence like that of the Ain, 1990. So, the Court must avoid construction of statute which will render the statute meaningless and ineffective and the court is to adopt the rule of liberal construction so as to give meaning to all parts of the provisions and to make the whole statute effective and operative. Apart from that the Ain of 2003 is a special law effective for the very purpose of realizing loan from the defaulted borrowers.
2. 18.          From the above quoted provisions of law, it is manifest that the legislature with the intention of speedy recovery of loan liability without any hindrance or obstruction being created by the judgment-debtors by way of filing frivolous application before the Court of law to delay and frustrate realization of the decretal amount incorporated non-obstinate clause in section 3 of the Ain of 2003 to have the effect that the said Ain shall prevail over other laws which are contrary to the said Ain of 2003.
3. 19.          As to the significance of non-obstante clause ourApex Court in the case of New Ideal Engineering Works Ltd. Vs. Bangladesh Shilpa Bank and others reported in 42 DLR (AD) 221 held as follows;

“a non-obstinate clause is usually used in a provision to  indicate that, that provision should prevail despite anything to the contrary in the provision  mentioned in such non-obstinate clause.”

1. 20.          Section 26 of the Ain of 2003 has expressly debarred application of the provisions of other statutes including the Code of Civil Procedure pending execution proceeding so far it is inconsistent with the provisions of the Ain of 2003. In other words, the relevant provisions of the   Code of Civil Procedure so far it relates to the procedure to make the suit ready for holding trial of Artha Rin suit as well as for execution of decrees are applicable which are not in conflict with the Ain of  2003.
2. 21.          Section 44 of the Ain of 2003 is relevant to the instant civil revisional applications, which runs as follows:

“44| AšÍe©Z©xKvjxb Av‡`k-(1) A_© FY Av`vjZ, gvgjvi mwVK I cwic~Y© wePvi I b¨vq wePv‡ii cª‡qvR‡b Ges wePvi Kvh©µ‡gi Ace¨envi cÖwZ‡ivaK‡í ‡hiƒc AšÍ©eZ©xKvjxb Av‡`k cÖ`vb Kiv msMZ g‡b Kwi‡e, †miƒc AšÍ©eZ©xKvjxb Av‡`k cÖ`vb Kwi‡Z cvwi‡e|

(2) Dc-aviv (3) Gi weavb mv‡c‡¶, GB AvB‡bi Aax‡b †Kvb Av`vjZ KZ©„K cÖ`Ë †Kvb AšÍ©eZ©xKvjxb Av‡`k‡K D”PZi †Kvb Av`vj‡Z Avcxj ev wiwfkb AvKv‡i weZ©wK©Z Kiv hvB‡e bv|

(3) Dc-aviv (2) Gi weavb m‡Ë¡I, †Kvb c¶ aviv 41 Gi Aaxb `v‡qiK…Z Avcxj GBiƒc †Kvb welq hyw³ wnmv‡e MÖnb Kwi‡Z cvwi‡e, hvnv Dcwi-E¢õ¢Ma weav‡bi Kvi‡Y weZwK©Z Kiv hvq bvB, Ges Avcxj Av`vjZ Hiƒc welq we‡ePbvq MÖnY Kwiqv b¨vqwePv‡ii ¯^v‡_© Dchy³ †h †Kvb Av‡`k cÖ`vb Kwi‡Z cvwi‡e|Ó

1. 22.          In view of above provision of law no interloc-utory order passed by the Artha Rin Adalat under the Ain of 2003 is appealable or revisable. In the case of Sultana Jute Mills Ltd. and others Vs. Agrani Bank and others reported in 46 DLR (AD) 174 the Appellate Division held as follows;

“revision is impliedly barred because the Adalat Act being  a special legislation setting up a special Court the remedies will follow as provided therein and if there is any exclusion indicated therein, as in section 6, it will include a remedy under the general law.”

1. 23.          In the case of Mrs. Hosne Ara Begum and another Vs. Islami Bank Bangladesh Limited reported in 5 MLR (AD) 290 the Appellate Division further held;

“this Division has clearly held that revision does not lie against an order of Artha Rin Adalat.”

1. 24.          In the case of Md. Harun-or Rashid Vs. Pubali Bank Limited and others reported in 12 MLR (AD) 343 the Appellate Division held :

“Joint  reading of section  6 (1) and 7 of the Act shows that all judgment and order not being a decree of the Artha Rin Adalat have been treated as final and conclusive. In such situation the party aggrieved by such judgment or order of the Artha Rin  Adalat cannot invoke revisional jurisdiction of the civil Court including the High Court Division under section 115 of the Code of Civil Procedure inasmuch as to construe otherwise would be inconsistent with the provisions of sections 5 (4) and 5(5) of the Artha Rin Adalat Ain.”

1. 25.          In the case of Kazi Gowaherul Islam (K J Islam) vs. Standard Co-operative Credit Society Ltd. and another reported in 50 DLR 333, Belayet Hossain vs. Bank Indosuez reported in 50 DLR 431, and the case of Iftekhar Afzal and another vs. Publi Bank Limited and others reported in 50 DLR 623 their Lordships also held that a revisional application under section 115 of the Code of Civil Procedure against any interlocutory order passed by an Artha Rin Adalat is not at all maintainable in law.
2. 26.          In the cases as mentioned above, the said observations/decisions of ourApex Court and this Court were given under the Ain of 1990, which has already been repealed, wherein there was no specific provision debarring exercise of revisional jurisdiction by the Court concerned including the High Court Division. The impugned orders as have been passed by the executing Court are interlocutory orders, not being a decree, as has been found in the case of Syed Monjur Morshed and another vs. Manager, Agrani Bank Ltd. reported in 14 BLC 501 wherein it has been held:

“In the present Artha Rin Adalat Ain, 2003 the legislature by incorporating section 44 has expressly debarred filing revisional application against an interlocutory order passed by the Adalat pending execution proceeding. The impugned orders passed by the Adalat under section 34 of the Ain, 2003 in the present cases are, no doubt, interlocutory orders. Accordingly, in view of section 44 of the Ain those orders are not revisable under section 115(1) of the Code of Civil Procedure.”

1. 27.          In view of the above facts and circumstances, the provision of law as contained in section 44(2) of the Ain of 2003, as well as the decisions of our Apex Court and this Court as referred to above, we have no other optition but to hold that the impugned orders in these revisional applications passed by the executing Court are interlocutory orders, and as such revision under section 115 of the Code is not maintainable.
2. 28.          Accordingly, all these Rules are discharged as not maintainable without any order as to costs. The order of stay granted in Civil Revision No.195 of 2010 is hereby vacated. The interim orders granted by this Court in Civil Revision No.1454 of 2009 and Civil Revision No.1318 of 2009 are hereby recalled.
3. 29.          The respective petitioners of Civil Revision Nos. 1454 of 2009 and 1318 of 2009 are however, directed to surrender before the Courts below within 2 (two) months from the date of receipt of the order.
4. 30.          Furthermore, the petitioners are at liberty to invoke any other Jurisdiction as prayed for to challenge the impugned orders, if so advised.

Communicate this order at once.

Ed.