M Tariqullah Sikder Vs. Sonali Bank, 2005, (HCD)

 Supreme Court

High Court Division

(Civil Revisional Jurisdiction)

Present:

Md. Abdul Quddus J

Md. Rezaul Haque J

M Tariqullah Sikder …………Appellant

Vs.

Sonali Bank……………………..Respondent

 

Judgment

March 29, 2005.

Cases Referred To-

Md. Shahidullah vs. Abdus Sobhan Talukder 1996 BLD 423 : 49 DLR 248; Sikdar Jute Bailing Ltd. vs. Sonali Bank 1998 BLD (AD) 268.

Lawyers involved:

Md. Faruque Ahmed, Advocate—For the Appellant.

Md. Golam Mostafa, Advocate-For the Respondent.

Appeal from Original Decree No. 337 of 2003.

Judgment

Md. Abdul Quddus J.- This FA 337 of 2003 is preferred against judgment dated 25-3-2003 by Joint District Judge, 3rd Court Dhaka rejecting plaint of TS No. 194/2002 under Order VII, rule 11 of the Code of Civil Procedure and formal decree framed thereunder.

2. It is stated that Sonali Bank as plaintiff filed Civil Suit No, 254/2001 in the Court of Joint District Judge, and Artha Rin Adalat No. 1 Dhaka against M Tariqullah Sikder as defendant for reali­sation of loan money from him with interest. Said suit was decreed ex parte on 18-4-2002 by Artha Rin Adalat No. 1 as above. M Tariqullah as plaintiff filed separately TS No. 194/2002 in the court of Joint District Judge 3rd Court Dhaka to set aside aforesaid ex parte Judgment and decree passed by Artha Rin Adalat No. 1 in Artha Rin Suit No. 254 of 2002.

3. Sonali Bank as defendant appeared in TS No. 194/2002 and filed an application under Order VII, rule 11 of the Code of Civil Procedure for rejecting the plaint of above suit being barred under section 6 of Artha Rin Adalat Act, 1990.

4. Court below after hearing both sides allowed application under Order VII, rule 11, Code of Civil Procedure and rejected the plaint of TS 194 of 2002 vide judgment dated 25-3-2003.

5. Being aggrieved, the plaintiff of TS 194 of 2002 as appellant preferred this FA 337 of 2003. On prayer by appellant Civil Rule No. 705(F)/2003 was issued calling upon the opposite party to show cause as to why Artha Jari case 333/2003 of Joint District Judge & Artha Rin Adalat No. 1 Dhaka should not be stayed till disposal of FA 337/2003. Rule was issued and it was made returnable within 2 weeks.

6. Learned Advocate for plaintiff-appellant frankly admits that Civil Suit No. 254 of 2001 was decreed ex parte on 18-4-2002 against Md Tariqullah Sikder as defendant in that suit. He submits that summons of the said Artha Rin Adalat case was fraudulently suppressed and the present appellant as defendant had no occasion to be aware of Civil Suit No. 254/2001 filed in Artha Rin Adalat which was decreed ex parte in the said suit. He submits that against such ex parte Judgment and decree TS 194/ 2002 was rightly filed separately to set aside said ex parte decree. In such connection he refers to provision of section 9 of the Code of Civil Procedure and also relies on a decision reported in 1996 BLD 423: 49 DLR 248 (Md Shahidullah vs Abdus Sobhan Talukder). He contends that the appeal must succeed.

7. Learned Advocate for respondent Sonali Bank in reply refers to the decision in the case of Sikdar Jute Bailing Ltd. vs. Sonali Bank reported in 1998 BLD (AD) 268 wherein it was held that separate suit to set aside ex parte decree passed by Artha Rin Adalat will not be maintainable in view of remedy available under Artha Rin Adalat Act itself.

8. Learned Advocate shows from Artha Rin Adalat Act, 1990 that initially there was no provision and scope for filing Miscellaneous case under Order IX, rule 13, Code of Civil Procedure to set aside ex parte decree passed by Artha Rin Adalat, but sub­sequently through amendment provision was inserted for such relief under Order IX. rule 13, Code of Civil Procedure to set aside ex parte judg­ment and decree on deposit of 50% of decretal amount. He submits that in the face of above provision and scope under Artha Rin Adalat Act itself separate suit to set aside ex parte decree passed by Artha Rain Adalat will be barred under section 6 of Artha Rin Adalat Act, 1990. He argues that learned court below, in view of such bar under section 6 of Act 1990 as to filing of separate suit, rejected, the plaint of TS 194 of 2002 under Order VII, rule ll of the Code of Civil Procedure vide impugned Judgment which calls for interference by this Division. According to him, the appeal must be dismissed.

9. We have considered contentions of both sides. We have perused the impugned judgment dated 25-3-2003 and also the memo of appeal filed against the same. We have perused the decision reported in 1998 BLD (AD) 268 and also perused provisions of section 6 of Artha Rin Adalat Act, 1990. We have also seen the provision inserted through amendment as to filing of miscellaneous case under Order IX, rule 13, Code of Civil Proce­dure for setting aside ex parte decree passed by Artha Rin Adalat on depositing 50% of the decretal amount.

10. It is obvious that M Tariqullah Sikder filed TS 194 of 2002 intentionally to set aside ex parte decree passed against him on 18-4-2002 by Artha Rin Adalat Case No. 254 of 2001 by Artha Rin Adalat No. 1, Dhaka in order to avoid deposit of 50% of decretal amount as required under provi­sions of Artha Rin Adalat Act by subsequent amendment of Act 1990.

11. Provision of section 6 of Artha Rin Adalat Ain, 1990 bars filing of separate suit to set aside ex parte decree passed by Artha Rift Adalat. Only available scope for setting aside ex parte decree passed by Artha Rin Adalat in Artha Rin case is to file miscellaneous case under Order IX, rule 13 of the Code of Civil Procedure by deposit of 50% of decretal amount. It clearly appears that TS 194 of 2002 was filed separately to set aside ex parte decree of Artha Riri Adalat in order to avoid deposit of 50% of decretal amount and filing miscellaneous case under Order IX, rule 13 of the Code of Civil Procedure as has been made available under said Act of 1990.

12. In the above connection, decision reported in 1998 BLD (AD) 268 has been appropriately cited from the Bank. In the above decision it has been held that separate suit to set aside ex parte decree passed by Artha Rin Adalat will not be maintainable in view of the remedy available under Artha Rin Adalat Act itself, Cited decision on behalf of appel­lant as reported in 1996 BLD 423 has no manner of application in this appeal.

13. In the above context, we see no merit in this appeal, which must fail. In the result, FA 337/2003 is dismissed on contest with cost to the contesting respondent. Impugned Judgment and formal decree dated 18-4-2002 and 25-4-2002 passed by the court below are affirmed. Civil Rule No. 705(F)/2003 be accordingly, discharged.

Copy be sent down.

Ed.

Source : 59 DLR (2007) 695

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