Hazera Begum Vs. Artha Rin Adalat & another, 54 DLR (2002) 78

Case No: Writ Petition No. 1124 of 2001

Judge: Md. Hamidul Haque,

Court: Appellate Division ,,

Advocate: Abdus Sobhan,MA Tariq,,

Citation: 54 DLR (2002) 78

Case Year: 2002

Appellant: Hazera Begum

Respondent: Artha Rin Adalat and another

Subject: Artha Rin,

Delivery Date: 2001-11-5

Supreme Court
High Court Division
(Special Original Jurisdiction)
 
Present:
Md. Hamidul Haque J
Md. Imman Ali J
 
Hazera Begum
………… Petitioner
Vs.
Artha Rin Adalat & another
………….Respondents
 
Judgment
November 5, 2001.
 
Artha Rin Adalat Ain (IV of 1990)
Section 6 ka
Under section 6 ka of the Act, the Adalat has been given power to pass an order which may not be in conformity with the provisions of the Code of Civil Procedure relating to execution of a decree. ….. (9)
 
Code of Civil Procedure (V of 1908)
Section 56
In view of the language used in section 6 ka of the Artha Rin Adalat Ain, 1990 the provisions of section 56 of the Code of Civil Procedure will not be a bar in passing an order for detention or arrest of a woman in execution of a decree for payment of money.
 
Lawyers Involved:
Md. Abdur Sobhan with Abu Hena Razzaki, Advocate—For the Petitioner.
MA Tariq, Advocate—For the Respondents.
 
Writ Petition No. 1124 of 2001
 
JUDGMENT
 
Md. Hamidul Haque J.
 
1. This Rule was issued calling upon the respondents to show cause as to why the impugned order dated 20-7-20 (Annexure ‘E’) passed in Money Execution Case No. 2 of 1991 by the learned Subordinate Judge and Artha Rin Adalat, Faridpur as far as it relates to the issuance of Civil Warrant of Arrest is concerned should not be declared to have been made without lawful authority and to be of no legal effect.
 
2. We have found that in this Rule the petitioner is one of the judgment debtors in Artha Rin Adalat suit No. 2/91 of Artha Rin Adalat, Faridpur. The respondent No. 2, Agrani Bank is the plaintiff of that suit. The suit was decreed and decree holder filed an application for execution the decree before the Artha Rin Adalat and from the order dated 16-7-97, we find that the execution case was disposed of on full satisfaction but subsequently by the order dated 25-5-2000, the earlier order was vacated and the execution case continued. The decree holder then filed an application for passing an order for civil imprisonment of the judgment debtors. After hearing the parties, the court passed the impugned order on 20-7-2000, allowed the prayer of the decree holder and passed an order of issuing warrant of arrest for detention of the judgment debtor 1, 2, 3 and 4. The judgment debtor No. 4 is the present petitioner before us.
 
3. Mr. Sobhan along with Mr. Abu Hena Razzaki appeared on behalf of the petitioner. Their main argument is that order of civil imprisonment of a woman is totally illegal. In this connection, they referred to section 56 of the Code of Civil Procedure. Mr Sobhan has also argued that no specific procedure has been laid down in the Artha Rin Adalat Ain, 1990 regarding execution of a decree. However, he conceded that the provisions relating to execution of a decree as laid down in the Code of Civil Procedure may not be applicable. According to him, as there is no specific procedure in the Artha Rin Adalat, there can not be an order of civil imprisonment of a woman.
 
4. Mr. MA Tariq appeared on behalf of the respondent decree holder. He has submitted that under section 6 Ka of the Artha Rin Adalat Ain 1990, the Artha Ain Adalat itself has been given the power to execute a decree passed by it. So, according to him, as the Artha Rin Adalat considered it fit and proper to pass an order for detention of the judgment debtors, the Adalat committed no illegality.
 
5. We have perused the provisions of section 6 Ka regarding execution of a decree. The section is reproduce below:
 
“৬ক। ডিক্রী বাস্তবায়ন।- Code of Civil Procedure, 1908 (Act V of 1908) এ যাহা কিছুই থাকুক না কেন কোন অর্থ ঋণ আদালতের সিদ্ধান্ত উক্ত আদালত র্কতৃক জারী ও বাস্তবায়ন করা হইবে।”

The above section provides that notwithstanding anything contained in the Civil Procedure Code. Artha Rin Adalat may execute its decree. Under section 56 of the Code of Civil Procedure, civil Court cannot pass an order for detention in the civil imprisonment of a woman in execution of a decree for payment of money. In view of the language used in section 6 ka of the Artha Rin Adalat Ain, 1990 the provisions of section 56 of the Code of Civil Procedure will not be a bar in passing an order for detention or arrest of a woman in execution of a decree for payment of money. So, we do not find that the Artha Rin Adalat committed any illegality in passing the impugned order of civil imprisonment of the petitioner.
 
6. Mr. Sobhan has pointed out that the provisions of section 6 ka is vague and, as such, there is scope of arbitrary exercise of power by Artha Rim Adalat. For proper appreciation of the legal position we may reproduce below the provisions of sub-sections (4) and (5) of section 5 of the Act:
 
“(৪) অর্থ ঋণ আদালত একটি দেওয়ানী আদালত (Civil Court) বলিয়া গন্য হইবে এবং (Code of Civil Procedure, 1908 (Act V of 1908) এ দেওয়ানী আদালতের যে সমস্ত ক্ষমতা ও এখতিয়ার আছে সেই সমস্ত ক্ষমতা ও এখতিয়ার, এই আইনের বিধান মাপেক্ষে অর্থ ঋণ আদালতের ও থাকিবে।”

(৫) এই আইনে ভিন্ন রূপ কিছু না থাকিলে, অর্থ ঋণ আদালত উহার কার্যক্রম পরিচালনার ব্যাপারে (Code of Civil Procedure, 1908 (Act V of 1908) এ দেওয়ানী আদালতের কার্যক্রম পরিচালনা সর্ম্পকে যে বিধান করা হইয়াছে উহা অনুসরণ করিবে।”

We cannot agree with Mr Sobhan if we peruse the provisions of section 6ka and the provisions of sub-sections (4) and (5) of section 5 of the Artha Rin Adalat Ain, 1990.
 
7. Under section 6 ka, the Artha Rim Adalat is empowered to execute its own decree but in executing such a decree, the provisions of the Code regarding execution of a decree shall not be binding upon the Adalat. In other words, if and when the Adalat considers it necessary, the Adalat may pass an order which may not be in conformity with the provisions of the Code of Civil Procedure. In the instant case, though under section 56 of the Code of Civil Procedure there cannot be an order for detention or arrest of a woman for the purpose of realisation of money, the Artha Rin Adalat considered it fit and proper for the sake of realisation of money that the judgment debtors including the petitioner be detained in civil prisons.
 
In view of the power given to such an Adalat under section 6 ka, the provisions of section 56 of the Code of Civil Procedure shall not be a bar for passing the above order.
 
8. In addition to the provisions of section 6 ka, we find that under sub-section (4) of section 5, Artha Rin Adalat has been empowered to exercise all the powers of civil Court subject to the provisions of the Artha Rin Adalat Ain. Sub-section (5) of section 5 provides that the Artha Rin Adalat should follow the procedures laid down in the Code of Civil Procedure which are not inconsistent with the provision of the Act. Provisions not consistent with the provisions of the Code of Civil Procedure have been included in some of the provisions of this Act, For example, under sub-section (2) of section 6, a defendant may file a case under Order 9 rule 13 of the Code of Civil Procedure but in that case, the petitioner defendant shall have to deposit half of the decretal amount. This provision of the depositing half of the decretal amount is over and above the conditions laid down in Order 9 rule 13 of the Code of Civil Procedure for filing a petition for setting aside an ex parte decree.
 
9. From our above discussion, we have found that an Artha Rin Adalat constituted under the Artha Rin Adalat Ain 1990, shall follow the procedure laid down in the Code of Civil Procedure in discharging its function if there is nothing inconsistent in this Act itself. Under section 6 ka of the Act, the Adalat has been given power to pass an order which may not be in conformity with the provisions of the Code of Civil Procedure relating to execution of a decree. In view off this position, we find no illegality in the order passed by the Artha Rin Adalat. The Rule is liable to be discharged.
 
In the result, the Rule is discharged. Stay granted earlier is vacated.
 
Ed.