Md. Ahmed Ali and others Vs. Bangladesh and others [4 LNJ (2015) 341]

Case No: Writ Petition No. 11034 of 2012

Judge: Mahmudul Hoque,

Court: High Court Division,,

Advocate: Mr. Khair Ezaz Maswood ,Ms. Sabina Parvin,Mr. Md. Imam Hossain ,Mrs. Khurshid Jahan,,

Citation: 4 LNJ (2015) 341

Case Year: 2015

Appellant: Md. Ahmed Ali and others

Respondent: Bangladesh and others

Subject: Writ Petition,

Delivery Date: 2014-12-09

Md. Ahmed Ali and others Vs.  Bangladesh and others
4 LNJ (2015) 341
HIGH COURT DIVISION
(SPECIAL ORIGINAL JURISDICTION)
 
Syed Refaat Ahmed, J,
And
Mahmudul Hoque, J.

 
Judgment on
9.12.2014
  Md. Ahmed Ali alias Ataur Rahman and another
……Petitioners.
-Versus-
The Government of the People’s Republic of Bangladesh represented by the Secretary, Ministry of Law, Justice and Parliamentary Affairs & others
……Respondents.
 
 
Code of Civil Procedure (V of 1908)
Order XXI, Rule I
If any person comes forward to pay the decretal amount  on behalf of the judgment-debtor or such person is obliged  to pay the decretal amount due to various circumstances the decree-holder, in this Court’s view, instead of refusing such payment should come forward to accept the payment. ...(19)
 
Code of Civil Procedure (V of 1908)
Order XXI, Rules 1 and 2
While judgment-debtors are legally bound to pay the deretal amount to the Decree Holder, there is little indication as who specifically may pay the amount in the manner formulated in clause (b) of Sub-rule 1. This, in this Court’s view, sufficiently envisage a scenario where a person who has purchased the property subject to the encumbrances may step into the shoes of the vendor and, though not being the borrower Judgment-Debtor strictly understood, by that reason is entitled to, and not precluded from, pay the decretal amount. . . . (21)
 
Transfer of Property Act (IV of 1882)
Section 55(5)(d)
A buyer shall be bound to pay the moneys due on any encumbrances subject to which the property is sold and the interest thereon afterwards accruing due. . . .(22)
 
Code of Civil Procedure (V of 1908)
Order XXI, Rule I
There is no prejudice to the Decree Holder if any person whatever may seek  satisfaction of the decree on proof  of payment  of the decretal amount in the account of the judgment-debtors as  provided under Order XXI, Rule 1. Given these facts and circumstances, it is this Court’s view that Order XXI, Rule 1 of the Code does  not indeed preclude person(s) other than Judgment-Debtor(s)  to pay the decretal amount in the name of the Judgment-Debtor(s) and seek a recording of such satisfaction of decree accordingly. . . . (13)
 
Constitution of Bangladesh, 1972
Article 102
To answer the second part of the question earlier raised, this Court, upon visiting the Act in its entirety has found nothing therein that attests to the fact of the Artha Rin Adalat being empowered to review its own Orders.       . . .(24)
 
K.S. Hussain Peer Vs. Kadapala Venkata Ramana Reddy, A.I.R.1989 (AP) 62 and Md. Salim Hossain Vs. Uttara Bank Ltd., 17 BLC (AD) 154 ref.
 
Mr. Khair Ezaz Maswood with       
Ms. Sabina Parvin
. . .For the petitioners.

Mr. Md. Imam Hossain with
Mrs. Khurshid Jahan, Advocates
. . . For the Respondents.
 
Writ Petition No. 11034 of 2012

JUDGMENT
Mahmudul Hoque, J:
 
In this application under Article 102 of the Constitution of Bangladesh a Rule Nisi was issued at the instance of the Petitioners calling upon the Respondents to show cause as to why the Order No.58 dated 29.07.2012 as evidenced by Annexure-F passed by the Joint District Judge, 2nd Court, Sylhet in Artha Jari Case No. 16 of 2005 refusing the Petitioners’ prayer for adjustment of their deposit against the outstanding loan and directing the Decree-Holder Respondent No.3 to supply the draft copy of auction sale should not be declared to have been passed without lawful authority and is of no legal effect, and as to why his earlier Order No.54 dated 29.02.2012 as evidenced by Annexure-E, directing the Decree-Holder Respondent No.3 to adjust the deposit made by the Petitioners in the loan account of the borrower Judgment Debtors should not be restored and/ or such other or further order or orders as to this Court may seem fit and proper.
 
Facts leading to disposal of this Rule, in short, are that the Petitioners are full brothers and they have purchased 0.1155 acre of land in Plot Nos. , appertaining to Khatian Nos. 2951/3, 2951/4 corresponding to Settlement Khatian No. 2951 of Mouza Sylhet Municipality by two registered sale deeds being Nos.12503 and 12504 dated 17.07.2005 from the Respondent  Nos. 5 to 12 . The Petitioners subsequently came to know that the said property was mortgaged by the Respondent Nos. 5 to 12 in favour of Bangladesh House Building Finance Corporation (“HBFC”), Sylhet, who had defaulted in paying the loan money. HBFC filed Artha Rin Suit being No. 51 of 1992 which was decreed in its favour. The said Decree-Holder HBFC for realization of its decretal amount filed Artha Jari Case No. 16 of 2005. Thereafter, the Petitioners after getting information about the aforesaid case sent a legal notice to the Respondent Nos. 5 to 12 for alleged suppression of fact and to take necessary steps for releasing the property from HBFC. Subsequently the Respondent Nos. 5 to 12 after receipt of the said notice, instead of taking any steps for releasing the property, filed Title Suit No. 185 of 2006 against the Petitioners in the 2nd Court of the Joint District Judge, Sylhet, for declaration that the kabalas registered in favour of the Petitioners in respect of the aforesaid property are forged and fraudulent and for recovery of khas possession of the said property.
 
Thereafter, the Petitioners filed an application for addition of party as Judgment-Debtors in the Artha Jari Case with a prayer for accepting the decretal amount from the Petitioners. But the Respondent Nos. 5 to 12 filed an objection and the learned Judge, Artha Rin Adalat by its Order dated 14.11.2006 rejected the application of the Petitioners and published Tender Notice for auction sale of the property in the daily ‘Sabuj Sylhet’ on 04.03.200. Impugning the said Order and the Tender Notice the Petitioner No. 1 filed Writ Petition No. 2782 of 2007 in this Court in which a Rule Nisi was issued and Order was passed staying operation of the Impugned Notice for auction. However, by this Court’s Order dated 26.05.2010 the Rule was discharged for non-prosecution on the assurance of the Respondent No. 5, the Borrower-Judgment-Debtor, that she will repay the entire outstanding loan within a short period. Subsequently, the Respondent Nos. 5 to 12 did not act as per their assurance and deposit the decretal money. However, by Order dated 21.07.2011 passed by the Artha Rin Adalat the Petitioners were added as judgment-debtors Nos. 2 and 3 in the Artha Jari Case.
 
That on an Order of the Artha Rin Adalat (“Adalat”) the Petitioners have deposited TK.20,44,000/00 (Twenty lac forty four thousand) in the account of the Respondent No. 4 HBFC towards adjustment of the outstanding loan owed by the Respondents Nos. 5 to 12 vide three deposit receipts, one dated 28.03.2007 and other two dated 20.07.2011.
 
That on 12.01.2012 the Petitioners as the added judgment-debtors filed an application in the Adalat praying for a direction to the Decree-Holder HBFC for adjustment of the deposit made by the Petitioners in the loan account of the Borrower-Judgment-Debtors, the Respondent Nos. 5 to 12. By Order No. 54 dated 29.02.2012 the Adalat allowed the application of the Petitioners with the consent of the Respondent No.3 and Respondents Nos. 5 to 12, directing the HBFC to adjust the amount deposited by the Petitioners in the loan account of the Borrower-Judgment-Debtors.
 
That on 09.07.2012 HBFC filed an application for reviewing the Order No. 54 dated 29.02.2012. The Adalat by Order No. 58 dated 29.07.2012 reversed its earlier Order and directed the HBFC to supply draft copy of auction sale by 13.08.2012 holding that the Borrower-Judgment-Debtors denied the claim of the Petitioners to have purchased the case land from them and that the higher authority within HBFC refused to adjust the deposit against the outstanding loan. At this juncture the Petitioners moved this Court by filing this Application under Article 102 of the Constitution challenging the propriety of the Impugned Order and obtained the present Rule and Order of Stay.
 
By filing a Supplementary Affidavit the Petitioners further stated that Toslimunnessa, the Respondent No. 5 and her son Mohiuddin Ahmad, the Respondent No. 12, and daughter Yasmin Akhtar took loan from Uttara Bank, Ambarkhana Barnch, Sylhet by mortgaging .070 acre of land covered by S.A. Plot No. , corresponding to B.S. Plot No. 7108. Out of the said land Taslimunnessa sold .035 acre of land by a kabala dated 18.05.2005 to Md. Mostafa Ahmad (Azad), who in turn sold the same to the Petitioners by kabala No. 12503 dated 17.07.2005. Taslimunnessa and her sons and daughters, the Respondents Nos. 5-12 herein, sold .08 acre of land to the Petitioners by kabala No. 12504 dated 17.07.2005 suppressing the fact of earlier mortgage with the Uttara Bank. The Respondents Nos. 5-12 defaulted in payment of loan and the said Bank filed Artha Rin Suit No. 7 of 2008 in the 2nd Court of the Joint District Judge and Artha Rin Adalat, Sylhet. The Suit was decreed, and the decree-holder Bank filed Artha Rin Execution Case No. 28 of 2009 for realization of the decretal money through auction  sale of the mortgaged property under sections 33(1) and (4) of the Artha Rin Adalat Ain, 2003 (“Act”). Since, there was no bid in response to sale proclamations and notices, on the application of the said Bank the Adalat issued and registered a certificate of title on 01.08.2012 in respect of the aforesaid .070 acre of land in favour of the Bank under Section 33(7) of the Act declaring the title of the said land vested in the decree-holder Bank. The present Petitioners made representations to Uttara Bank on 07.06.2012 and 27.02.2013 seeking release of .035 acre of land, which the Petitioners purchased from Md. Mostafa Ahmad Azad, a transferee from Taslimunnessa Jaigirdar on 17.07.2005, on receipt of the decretal amount from the Petitioners. But instead of responding to the Petitioners, Uttara Bank published auction notice on 28.4.2013 for sale of .07 acre of land. The present   Petitioners challenged the same by filing Writ Petition No. 4924 of 2013. By an Order dated 15.5.2013 this Court directed the said Bank to dispose of those representations of the Petitioners within a period of one month in accordance with law and further directed that till disposal of those representations the auction process initiated by the Bank be kept in abeyance.
 
Uttara Bank, however, remaining in non-compliance  of that Order, the present Petitioners, consequentially filed Contempt  Petition No. 74 of 2014 wherein a Rule was  issued  on 15.5.2014 directing the Uttara Bank to show cause as to why a contempt proceeding  will not be  drawn against it. This led to a positive response from the Bank manifested in its recognition that the Petitioners should pay the whole of the decretal amount and take whole of the land. Ultimately, the Petitioners agreed to the Bank’s proposal to secure their property and the said Bank by a kabala executed and registered on 9.6.2014 sold the land in the case plot No.   to the Petitioners who thus acquired title in the said land.
 
Evident also is the fact that, Taslimunnessa Jaigirdar took loan of Tk. 5,00,000/- from the Islami Bank Bangladesh Ltd. Ambarkhana Branch by mortgaging the self same land by a deed of mortgage dated 21.7.2002 prior to the Petitioners’ acquisition of the said land from her. Thereafter, the Petitioners got the property released by paying the loan and then took the Kabala No. 12504 dated 17.7.2005 from Taslimunnessa Jairgirdar and her son and daughter. At the time of purchase, the vendors handed over certified copy of  their title deed to the Petitioners on the plea that the original had been lost. The Petitioners further asserted that, if the money paid by the Petitioners is adjusted in the account of the Judgment-Debtors, the Petitioners undertake that they would not demand from HBFC return of the original title deeds of the Borrower-Judgment-Debtors and will not claim any other right of subrogation.
 
HBFC contested the Rule by filing an Affidavit-in-Opposition denying all the material allegations made in the application  contending, inter alia, that on an Order of the Adalat the Petitioners deposited the decretal money in their names and not in the names of the Borrower-Judgment-Debtor Respondent Nos. 5-12. Since the higher authority within HBFC refused to accept the said deposit in the names of the Petitioners, HBFC filed a petition in the Adalat on 9.7.2012 to review the Order No. 54 passed  by it on 29.2.2012 and the Adalat by Order No.58 dated 29.7.2012 reversed the earlier Order and directed  HBFC to supply  draft copy of auction sale by 13.8.2012. It is also contended that HBFC cannot accept the decretal amount from a third party other than Judgment-Debtors as there is no legal relationship between HBFC and the Petitioners. Rather there is a title dispute between the Judgment-debtors and the Petitioners relating to the mortgaged property. So, the Petitioners have no locus standi and as such the Writ Petition is not maintainable and the Rule is liable to be discharged.
 
Mr. Khair Ezaz Maswood, the learned Advocate appearing for the Petitioners submits that the Petitioners as purchasers with a view to save the property from auction filed an application in the Artha Jari Case praying for addition of party as Judgment-Debtors and accepting the decretal amount from the Petitioners. By Order dated 21.07.2011 the Adalat added the Petitioners as Judgment-Debtor Nos. 2 and 3 in the Artha Jari case. The Respondents did not challenge the said Order before the higher court and as such the Petitioners have assumed the status of Judgment-Debtors co-extensive with the Respondent Nos. 5 to 12. As Judgment-Debtors the Petitioners in pursuance of an Order of the Adalat dated 29.12.2012 have deposited entire decretal amount with interest totaling Tk. 20,44,000/- in the account of HBFC towards adjustment of the loan owed by the Respondent Nos. 5-12. The Adalat passed the said Order with the consent of HBFC and Respondent Nos.5-12 directing HBFC to adjust the amount in the loan account of the Respondent Nos. 5-12. On an application filed by HBFC the Adalat reversed the Order No. 54 dated 29.02.2012 and directed the Decree-Holder to supply draft copy of the auction notice by 13.08.2012 most illegally and arbitrarily. Mr. Maswood further submits that the Artha Rin Adalat cannot review its Order passed earlier which has already taken effect. It is also argued that any person whose interest is involved in the mortgaged property other than a Judgment-Debtor is similarly legally entitled to pay and satisfy the decree with a view to get the property released. Since, therefore, the Petitioners have assumed the role of Judgment-Debtors in the Artha Jari Case by way of addition, there is no legal impediment in they making the payment of the decretal amount towards adjustment of the loan of the Respondent Nos. 5 to 12. It is argued, therefore, that, the Adalat passed the Order on 29.2.2012 rightly allowing the Petitioners prayer to pay the amount and directing HBFC to adjust the same in the loan account of the loanee.
 
The arguments above are predicated on the core submission of Mr. Maswood that persons other than the judgment–debtor can satisfy the decretal amount and seek recording of satisfaction of the decree as per provisions of Order XXI, Rules 1 and 2 of the Code of Civil Procedure (“Code”). Accordingly, the Petitioners having made payment of the decretal amount to the Decree-holder, the latter is legally bound to adjust the same in the account of the borrower Judgment-debtor. But the Decree-Holder HBFC instead of making adjustment of the amount in the account of the loanee with a mala fide intention , Mr. Maswood submits, sought review of the Order passed by the Adalat. It is also argued that the intention of the legislature  is to recover money  from the borrower Judgment-debtor and  not to sell the property of the mortgagor or their successor. But in the instant case HBFC is more interested to sell the property in auction  than to adjust  the amount  paid by the  Petitioners in the account of the Respondent Nos. 5-12 borrowers. Such attitude and action of the HBFC has got no legal sanction under the  Act or under any other laws and as such the Impugned Order passed by the Adalat  reversing its earlier Order  is palpably illegal  and without lawful authority. It is also submitted that the Petitioners shall not claim redemption of the mortgaged property in their favour or ensist on the handing over of the original property documents, if the adjustment of the money is made by HBFC in the loan account of the judgment-debtors. In support of his submissions he has referred to the case of K.S. Hussain Peer-Vs.- Kadapala Venkata Ramana Reddy reported in A.I.R. 1989 (AP) 62.
 
Mr. Imam Hossain with Ms. Khorshid Jahan , the learned Advocates appearing for the  Respondent No.4 submit that the Petitioners are neither  mortgagors nor Judgment-debtors as such they are not entitled to make payment  of the decretal amount to HBFC which is not legally  obliged to accept the payment made by them and to release the mortgage property in favour of any person other than the mortgagors. Mr. Imam also submits that there is a dispute between the mortgagor-borrower and the Petitioners regarding validity of the sale deeds alleged to have been executed by the mortgagors. If the payment is received from the Petitioners and the property is released by HBFC, there is the risk of multiplicity of proceedings and anticipating such scenario HBFC refused to accept the payment and adjust the same in the account of the borrower and took step for auction sale as per Order of the Adalat. It is also argued that the Artha Rin Adalat can rectify its own order under Section 57 of the Act and there is no illegality in the Impugned Order. In support of his submissions he has referred to the case of  Md. Salim Hossain- Vs- Uttara Bank Ltd. reported in 17 BLC (AD) 154, facts of the present case is different from the case referred to by the Respondent’s counsel.  
 
Heard the learned Advocates for the parties, perused the Writ Petition, Supplementary Affidavit, Affidavit-in-Opposition alongwith the Annexures annexed thereto.
 
In the present Case the Petitioners grievance stems from the Order No. 58 dated 29.7.2012 passed by the Artha Rin Adalat, Sylhet   reversing its order No. 54 dated 29.2.2012 by which the Court directed the Decree-Holder HBFC to adjust the amount  deposited by the Petitioners in the loan account of the borrower judgment-debtors. For proper appreciation, Order No.54 is reproduced below;
 
54z 29/2/12   AcÉ Aœ ®j¡LŸj¡ öe¡e£l SeÉ ¢ce d¡kÑÉ z ¢X¢œ²c¡l fr q¡¢Sl¡ ¢cu¡­Re z c¡¢uL fr q¡¢Sl¡ ¢cu¡­Re z e¢b öe¡e£l SeÉ mJu¡ qCm z
Heard the petition filed by added judgment Debtors seeking for an order directing the decree holder bank to adjust the amount deposited by them in the loan account of the borrower judgment debtor. Ld. Lawyer for decree holder bank and also the Ld. Lawyer for the borrower judgment debtor did not oppose the prayer. Obviously, the Petitioners deposited the decretal amount in the concerned loan account of the borrower judgment-debtor unassumingly and they look forward to having their dispute settled in T.S. 185/06. On the other hand, borrower judgment debtors have resorted to delatory tactics turning down their commitment made before the Hon’ble High Court Division in Writ Petition No. 2782/07 and have filed petition seeking for adjournment again today. Considering every aspect, the prayer of the added judgment debtors be allowed and that of the borrower judgment debtors be rejected. Decree holder is directed to adjust the amount deposited by the added Judgment debtors according to the date of such deposit and submit report by 09.04.12 as to their satisfaction.”
 
From  a perusal of the above quoted Order of the Adalat, it is found that the direction given by the Adalat  to adjust the amount deposited by the Petitioners in the account of the Borrower-Judgment-Debtor without any objection from the Decree-holder as well as the judgment-debtors i.e. Respondent Nos. 5 to 12 . Thereafter, HBFC  by filing an application on 9.4.2012 prayed three months’ time to effect adjustment  of the amount and for an Order enabling HBFC not to hand over the original documents to the added judgment-debtor-petitioners. The Adalat allowed time as prayed for and fixed 9.7.2012 for further Order. On the date fixed the HBFC filed an application under Order 47, Rule 1 of the Code for review of the Order No. 54 dated 29.2.2012. The Court fixed 12.7.2012 and thereafter on 29.7.2012 for hearing the said application. The Adalat  heard the application filed by HBFC on 29.7.2012 and upon hearing the parties allowed the application and accordingly reversed its earlier Order dated 29.2.2012 in the terms which runs thus:-
 
“58. 29.07.12 Today is fixed for hearing of both the Petitions filed by the contending parties and order. Both parties filed hazira. Heard the ld. Lawyers at length and perused the petition with inept attention alongwith the record as a whole. As per version of the petition propounded by the decree holder, higher authority of the decree holder declines to adjust the amount deposited by the added judgment debtors. Obviously, the added judgment debtors have deposited the entire dues of the impugned loan disclosing that they purchased the scheduled property in good faith from the borrower-judgment debtors by virtue of the kabalas dated 17.07.05 but the borrower judgment debtors headed by Taslimunnessa Jaigirdar denied such claim stating that the deeds are forged and were procured from her under threat. It is further asserted that she has already instituted T.S. 185/06 praying for cancellation of the kabalas. In such state of affair, higher authority of the decree holder logically refuses to adjust the amount deposited by the added judgment-debtors to avoid further complicacy.           
Banking upon foregoing observations, I could not but accept the apprehension of the decree-holder and entertain his prayer. Hence the prayer is allowed. Ipso facto the prayer of the Added judgment debtor is rejected, especially when their review petition has been disposed of by the Head Office of the decree holder with negation. Hence, in view of order no. 40 Decree-holder is directed to supply draft copy of auction sale by 13.08.12.”
 
The Impugned Order above raises the core issue for this Court’s consideration thus:  Can a person other than the Judgment-debtor pay or satisfy the decretal amount in the account of the Judgment-debtor and whether the Adalat is empowered to review an earlier Order.?
 
To answer the first part of the question raised, provisions of payment under decree provided under Order XXI, Rules 1 and 2 of the Code may be looked into. These run thus:-
Order XXI  R.1. Modes of paying  money under decree .- (1) All money payable under a decree shall be paid as follows, namely:-
 
by deposit in or by postal money order sent to the Court whose duty it is to execute the decree, or
out of Court to the decree-holder, or
otherwise as the Court which made the decree directs.
2(a) Where any payment is made under clause (a) of sub-rule (1), notice of such payment shall be given to the decree-holder or the person in whose favour the order is made.
(b) The cost of giving such notice shall be borne by the person making payment who shall have the option of having the notice served either by a process-server of the Court or by registered post. No such notice shall issue until the said cost shall have been paid.
Order XXI R.2. Payment out of Court to decree-holder. (1) where any money payable under a decree of any kind is paid out of Court, or the decree is otherwise adjusted in whole or in part to the satisfaction of the decree-holder, the decree holder shall certify such payment or adjustment to the Court whose duty it is to execute the decree, and the Court shall record the same accordingly.
(2) The judgment-debtor also may inform the Court of such payment or adjustment, and apply to the Court to issue a notice to the decree-holder to show cause, on a day to be fixed by the Court, why such payment or adjustme-nt should not be recorded as certified; and if, after service of such notice, the decree-holder fails to show cause why the payment or adjustment should not be recorded as certified, the Court shall record the same accordingly.
(3) A payment or adjustment, which has not been certified or recorded as aforesaid, shall not be recognized by any Court executing the decree.
 
It is to be noted that Order XXI, Rule I deals with diverse modes of payment of the decretal amount.  In that regard, payment can be made by deposit into the Court, out of the Court to the decree-holder or otherwise as the Court directs. The intention  of the legislature is to realize the decretal amount  by the decree-holder by putting the decree in execution. It is to be deduced, therefore, that the decree–holder is concerned with the payment of the decretal amount whatever be the source for such payment. In that regard, if any person comes forward to pay the decretal amount  on behalf of the judgment-debtor or such person is obliged  to pay the decretal amount due to various circumstances the decree-holder, in this Court’s view, instead of refusing such payment should come forward to accept the payment.
In the present case the situation is that the Petitioners are constrained to pay the decretal amount in the account of the Judgment-debtor to protect their property from auction sale and they, for such reason, came forward to satisfy  the decree by making payment to the decree-holder  with a view to safeguard them from resultant loss  and further harassment  and hardship. Order XXI, Rule (2)(1)  of the Code obliges the decree-holder to certify such payment or adjustment of the decretal amount to the Court but the decree-holder HBFC in the present case refused  to accept and adjust the amount paid by the Petitioners in the account of judgment-debtors. Instead, HBFC got the earlier positive and favourable direction of the Adalat to adjust the amount paid by the Petitioners in the account of the judgment-debtor reviewed.
 
A cumulative reading of the clauses (a)(b) and (c) of rule 1 coupled with rule 2 of Order XXI of the Code reveals that while judgment-debtors are legally bound to pay the deretal amount to the Decree Holder, there is little indication as who specifically may pay the amount in the manner formulated in clause (b) of Sub-rule 1. This, in this Court’s view, sufficiently envisage a scenario where a person who has purchased the property subject to the encumbrances may step into the shoes of the vendor and, though not being the borrower Judgment-Debtor strictly understood, by that reason is entitled to, and not precluded from, pay the decretal amount. Indeed, this can be  seen substantiated from another perspective, for example, under Section 55(5)(d) of the Transfer of Property Act, 1882 which runs thus:-
 
55.       Rights and liabilities of buyer and seller- In the absence of a contract to the contrary, the buyer and the seller of immovable property respectively are subject to the liabilities, and have the rights, mentioned in the rules next following, or such of them as are applicable to the property sold:

(5)  The buyer is bound-

‘(d).- Where the ownership of the property has passed to the buyer, as between himself and the seller, to pay all public charges and rent which may become payable in respect of the property, the principal moneys due on any encumbrances subject to which the property is sold, and the interest thereon afterwards accruing due’.      
 
This Court finds, therefore that given the above quoted provisions of law, a buyer shall be  bound to pay the moneys due on any encumbrances  subject to which the property is sold and the interest thereon afterwards accruing due. In the instant case the Petitioners contend to have purchased the case property with the encumbrances and as such they suffer from no legal impediment to pay the decretal amount as public charge to the decree-holder to satisfy the decree even given the fact that the fact of mortgage is not disclosed in the sale and notwithstanding the pending of Title Suit No. 185 of 2006. It is understood that the sale in question took place subject to encumbrances. For that reason also the Petitioners can pay and satisfy the decree as alleged purchaser of the property subject to a mortgage.
Furthermore, Order XXI, Rule 2 of the Code also does not preclude or prohibit any person to apprise the Court regarding payment and record satisfaction of the decree. This Court, accordingly, finds no rationale or purpose behind the rigid interpretation of disabling the judgment-debtor or the Petitioners to set in motion the proceeding for recording satisfaction of the decree. Indeed, there is no prejudice to the Decree Holder if any person whatever may seek  satisfaction of the decree on proof  of payment  of the decretal amount in the account of the judgment-debtors as  provided under Order XXI, Rule 1. Given these facts and circumstances, it is this Court’s view that Order XXI, Rule 1 of the Code does  not indeed preclude person(s) other than Judgment-Debtor(s)  to pay the decretal amount in the name of the Judgment-Debtor(s) and seek a recording of such satisfaction of decree accordingly.
 
To answer the second part of the question earlier raised, this Court, upon visiting the Act in its entirety has found nothing therein that attests to the fact of the Artha Rin Adalat being empowered to review its own Orders. By that reason, and given the observations herein above, this Court finds that the Impugned Order on the face of it is illegal and not sustainable in law. Therefore, this Court finds merit in the Rule and is inclined to make the Rule absolute. However, nothing of this judgment shall affect the merit of the Title Suit No. 185 of 2006 filed by the Respondent Nos. 5-12 against the Petitioners challenging the validity of the sale deeds in question.
 
In the result the Rule is made absolute, however, without any order as to costs.
Accordingly, the  Order No.58 dated 29.07.2012 as evidenced by Annexure-F passed by the Joint District Judge, 2nd Court, Sylhet in Artha Jari Case No. 16 of 2005 refusing the Petitioners prayer for adjustment of their deposit against the outstanding  loan and directing the decree-holder Respondent No.4 to supply the draft copy of auction sale is declared to have been passed without lawful authority and is of no legal effect, and the Order No.54 dated 29.02.2012 as evidenced by Annexure-E, directing the Decree-Holder Respondent No.4 to adjust the deposit made by the Petitioners in the loan account of the borrower Judgment Debtors is, hereby, restored.
 
The Respondent No.4   decree-holder HBFC is, hereby, directed to adjust the amount paid by the Petitioners in the account of the Borrower-Judgment-Debtors, i.e. Respondent Nos. 5 to 12 and to certify the payment and adjustment of the decretal amount in accordance with law and consequentially release the property in question by way of redemption to the mortgagors.
 
Furthermore, the Artha Rin Adalat is directed to dispose of the case  recording satisfaction of the decree after confirming that the payment duly made by the Petitioners in the account of the borrower –judgment –debtor i.e., Respondent Nos. 5 to 12.
 
The Order of stay granted earlier at the time of issuance of the Rule is, hereby, vacated.
 
Communicate a copy of this Judgment at once to the Artha Rin Adalat concerned.
 
Ed.