Karnafuli Cotton Mills Ltd. Vs. United Commercial Bank Ltd. and others, 49 DLR (AD) (1997) 130

Case No: Civil Petition for Leave to Appeal No. 461 of 1995

Judge: Mustafa Kamal ,

Court: Appellate Division ,,

Advocate: Dr. Rafiqur Rahman,,

Citation: 49 DLR (AD) (1997) 130

Case Year: 1997

Appellant: Karnafuli Cotton Mills Ltd.

Respondent: United Commercial Bank Ltd.

Subject: Procedural Law,

Delivery Date: 1995-11-8

 
Supreme Court
Appellate Division
(Civil)
 
Present:
ATM Afzal CJ
Mustafa Kamal J
Latifur Rahman J
Md. Abdur Rouf J
Md. Ismailuddin Sarker J
 
Karnafuli Cotton Mills Ltd.
................... Petitioner
Vs.
United Commercial Bank Ltd. and others
…............... Respondents
 
Judgment
November 8th, 1995
 
Code of Civil Procedure (V of 1908)
Section 115
High Court Division have committed grave error of law in passing the impugned order giving the respondent full relief in a summary manner.….. (3)
 
Cases Referred to- 
Abdul Wahhab vs. Ali Ahmed, 44 DLR (AD) 55, Alt Ahmed Abdul Hafiz vs. MA Haque Siraji, 1913 BLD (AD) 193, Azizul Haque Choudhary vs Manzur Hossain, BCR 1984 (AD) 532 and Sukuret Sen vs. Gouranga Bejoy Das, BLD 1989 (AD).
 
Lawyers Involved:
MA Wahhab Miah, Advocate, instructed by Sharifuddin Chaklader, Advocate-on-Record — For the Petitioner.
Dr. Rafiqur Rahman, Senior Advocate, instructed by Sirajur Rahman, Advocate-on-Record— For Respondent No. 1.
Not represented—Respondent Nos. 2-6.
 
Civil Petition for Leave to Appeal No. 461 of 1995
(From the Judgment and Order dated 9-7-95 passed by the High Court Division in Civil Order No. 2615 of 1995).
 
JUDGMENT
 
Mustafa Kamal J:
 
       This petition for leave to appeal by defendant-opposite party No. 1 is from the judgment and order dated 9-7-95 in which a Rule sought to be obtained by the plaintiff- petitioner-respondent was not pressed, yet, as prayed for by the respondent, an Advocate Commissioner was appointed, thus granting full relief to the respondent without issuing any Rule and without hearing the petitioner.
 
2. The respondent-Bank filed Mortgage Suit No. 37 of 1994 against the petitioner and other in the Court of Subordinate Judge and Artha Rin Adalat, Chittagong for recovery of Taka 25, 96, 27,209.04 and on 26-2-95 filed an application under Order XXXIX rule 7 CPC for appointment of an Advocate Commissioner for making an inventory of all the machineries, spare parts, raw materials and finished products as pledged with the respondent Bank. The petitioner filed written objection on 15-3-95 and by order dated 15-4-95 the Artha Rin Adalat rejected the respondent’s application against  which the respondent flied the aforesaid Civil Order No. 2615 of 1995 in which the High Court Division without issuing any Rule and without hearing the petitioner granted all the relief that was prayed for the respondent.
 
3. Mr. MA Wahhab Miah, learned Advocate for the petitioner rightly cited the cases of Abdul Wahhab vs. Ali Ahmed, 44 DLR (AD) 55, Alt Ahmed Abdul Hafiz vs. MA Haque Siraji, 1913 BLD (AD) 193, Azizul Haque Choudhary vs Manzur Hossain, BCR 1984 (AD) 532 and Sukuret Sen vs. Gouranga Bejoy Das, BLD 1989 (AD) and correctly submitted that granting of reliefs summarily on a revisional application without issuing any Rule on the opposite party is neither legal nor fair and the learned Judges of the High Court Division have committed grave error of lawn passing the impugned order giving the respondent  full relief in a summary manner.
 
4. We have no hesitation in deprecating manner in which the impugned order has bees passed. We are also disappointed that Dr. Rafiqur Rahman, learned Counsel for the respondent who moved the motion and did not press for a Rule, a obtaining the aforesaid irregular order from the High Court Division, did not point out that such a cab is not to be issued and is not the practice of the Court Division.
 
5. Without entering into the question as to whether a revisional application was maintainable, we are however not inclined to grant any leave in this case on the sole consideration that after hearing the parties we are satisfied that the order will not work prejudice to the petitioner in any manner. But the order has to be modified, because Mr. MA Wahhab Miah emphatically insists that the plants and machineries of the petitioner have not been pledged, hypothecated or mortgaged with the respondent-Bank and so an inventory thereof is uncalled for.
 
6. In that view of the matter the Advocate Commissioner will make an inventory of only those objects which arc the subject matter of any pledge, hypothecation or mortgage, mentioned in a document of such nature, to which the petitioner is a party.
 
Subject to this modification of the order of the High Court Division the petition is disposed of.
 
Ed.