Md. Kamal Hossain Vs. Subordinate Judge, Artha Rin Adalat and others, 2008

Supreme Court

Appellate Division

(Civil)

Present:

MM Ruhul Amin CJ

Mohammad Fazlul Karim J

Md. Tafazzul Islam J

Md. Joynul Abedin J

Md. Abdul Matin J

Md. Kamal Hossain….. Appellant

Vs.

The Subordinate Judge, Artha Rin Adalat and others….. Respondents

Judgment

August 19, 2008.

Case Referred to-

Punjab Mercantile Bank Ltd. Vs. Sardar Kishan Singh, AIR 1963 Punjab 230.

Lawyers Involved:

Rokanuddin Mahmood, Senior Advocate, instructed by Mr. Bivash Chandra Biswas, Advocate-on-Record- For the appellant.

M. Khaled Ahmed, Advocate-on-Record- For the Respondent No.3.

Not represented- Respondent Nos.1, 2 & 4.

Civil Appeal No. 4 of 2000.

(From the Judgment and Order dated 6th July, 1999 passed by the High Court Division in Writ Petition No. 1526 of 1999)

Judgment

MM Ruhul Amin CJ.- This appeal by leave is directed against the judgment and order dated 6th July, 1999 passed by the High Court Division in Writ Petition No. 1526 of 1999 summarily rejecting the writ petition.

2. Short facts are that the writ petitioner is the auction-purchaser. He seeks leave to appeal against the judgment and order dated 6th July, 1999 passed by the High Court Division in Writ Petition No. 1526 of 1999 refusing to interfere with order dated 10th March, 1999 passed by the Subordinate Judge and Artha Rin Adalat, Noakhali in Artha Execution Case No. 52 of 1994 setting aside the auction held on 6th October, 1998.

3. The writ respondent No.3, i.e. Janata Bank, Chowmohani Branch, Chowmohani, Noakhali as plaintiff obtained a decree for recovery of Tk. 19,80,076.88 in Mortgage Suit No. 52 of 1992. Lands and buildings including machineries of the judgment-debtor (respondent No.4) were put to auction sale to realize the decretal amount. Auctions were held thrice. In the first auction no bidder participated. In the second auction the highest bid was Tk. 3,10,000/- only. The Executing Court did not accept the bid and directed fresh auction. The auction was held on 6th October, 1999 in which five bidders including the writ petitioner participated. The writ petitioner’s bid of Tk. 3,36,000/- was the highest. The Court prepared a comparative statement which was sent to the decree-holder bank for its consent. The Bank gave its consent the respondent No.2, a stranger, filed an application under Order 21 Rule 90 of the Code of Civil Procedure for setting aside the sale on the ground that he was ready to buy the said property at a higher price of Tk.3,50,000/- whereupon the Court ordered him to deposit Tk.50,000/- which he did. The Executing Court thereafter canceled the auction by its order dated 10th March, 1999.

4. Being aggrieved the writ petitioner preferred Writ Petition No.1526 of 1999 before the High Court Division to have the said order declared to have been made without lawful authority.

5. Leave was granted to consider the submission that the High Court Division misdirected itself in law in taking the view that the Executing Court could suo motu exercise its power under Order XXI Rule 90 of the Code of Civil Procedure and the submission that the High Court Division having itself found that the respondent No. 2 at whose instance the sale was set aside was not a person as contemplated under the said provision, acted illegally in maintaining the order of the Executing Court, particularly when the respondent No. 2 has not sustained any injury.

6. We have heard Mr. Rokanuddin Mahmood, the learned Counsel for the appellant and Mr. M. Khaled Ahmed, the learned Advocate-on-Record for the respondent No.3 and perused the judgment of the High Court Division and other connected papers on record.

7. It appears from the record that the decretal amount was at Tk. 18,07,373/- and the mortgaged property namely Rupali Textile Mills Ltd. was sold at Tk. 3,36,000/- only. The Executing Court while setting aside the auction sale dated 6.10.1998 by order dated 10.3.1999 held that the impugned auction was published by the decree holder Bank in a single newspaper and it was done to avoid wide publicity and as a result the bidders who participated in the auction were all from the same village excepting one. Accordingly the Executing Court found collusion and fraud on the face of the record and hence set aside the auction sale in question with some directions.

8. The High Court Division by the impugned order refused to interfere with the order dated 10.3.1999 passed by the Executing Court on the ground that the Court can suo motu take notice of gross irregularities in auction sale and from the facts as stated in the application under Order 21 Rule 90 of the Code of Civil Procedure.

9. It is true that at the instance of a 3rd party auction sale can be set aside but the Court has always the power to set aside such auction sale on the ground of fraud and irregularities.

10. In the case of Punjab Mercantile Bank Ltd. Vs. Sardar Kishan Singh reported in AIR 1963 Punjab 230 it was held as under:

“There is, no doubt, force in this argument, and the logical result of this argument is that Dharam Singh cannot assail the validity of the auction sale. But Dharam Singh comes into the picture only to the extent that he is instrumental in revealing a fraud on the Court. Even if Dharam Singh has no locus standi, the Court has an ample reserve of inherent powers to satisfy itself suo motu that its process has been abused. Because the source of information happens to be a person who has no locus standi, the Court cannot close its eyes and decline to exercise its inherent powers to set aside the sale on being satisfied that as a result of conspiracy a fraud has been perpetrated and its process has been abused”.

12. In the instant case, in the above facts and circumstances of the case and the materials on record, as both the Executing Court and the High Court Division held that those were material irregularities in publishing and conducting the auction sale, we are of the view that the High Court Division upon correct assessment of the materials on record arrived at a correct decision.

The appeal is dismissed.

Ed.

Source : 15 BLC (AD) (2010) 177

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