Md. Rukunuddin Mollah & ors. Vs. Artha Rin Adalat & others, 4 LNJ (2015) 674

Case No: Writ Petition No. 7647 of 2013

Judge: Mahmudul Hoque,

Court: High Court Division,,

Advocate: Shah Md. Munir Sharif,Mr. M. Muksedl Islam,Mr. Md. Harun-Or-Rashid,,

Citation: 4 LNJ (2015) 674

Case Year: 2015

Appellant: Md. Rukunuddin Mollah & others

Respondent: Artha Rin Adalat & others

Subject: Artha Rin,

Delivery Date: 2015-04-27


HIGH COURT DIVISION
(SPECIAL ORIGINAL JURISDICTION)
 
Zubayer Rahman Chowdhury, J.
And
Mahmudul Hoque, J.

 
Judgment on
27.04.2015
  Md. Rukunuddin Mollah being dead his heirs:- A. N. Md. Nasim Uddin Mollah and others.
…Petitioners
Versus
Artha Rin Adalat, 2nd Court, Dhaka of Judge’s Court Building, Dhaka and others
. . . Respondents
 
Constitution of Bangladesh, 1972
Article 102
Code of Civil Procedure (V of 1908)
Sections 151 and 153
The learned Judge of the Artha Rin Adalat construed the decree in the light of admitted fact that the property sold by auction, is, indeed, property actually mortgaged as security against loan. In this situation the Adalat in an appropriate case to ascertain the circumstances under which the decree was passed and ordered sale of the property by auction can consider the application for correction of the schedule maintaining true intent and purpose of the decree. ….(16)

Code of Civil Procedure (V of 1908)
Sections 37, 151 and 153
The property in question covered by Touzi No. 192,  C.S. Khatian No. 112 , S.A. Khatian No. 96 butted and bounded  by definite boundary as  admitted by the parties to the litigation . In such a situation it was not necessary for the Decree Holder Bank to amend the schedule inserting plot number wherein specific boundary, Khatian number and quantum of land are same as in the title deed of the mortgagors. It is in this Court’s view that inclusion of plot number in the Execution Application was a mere surplusage, not calculated to mislead anybody. . . .(20)

Code of Civil Procedure (V of 1908)
Sections 151 and 153
Insertion of Plot number was not at all necessary where specific boundary of the Mortgaged property given and the Executing Court committed no illegality by inserting Plot number in the schedule considering and construing the facts that the property sold by auction are the property Mortgaged to the Decree  Holder Bank. . . .(21)

Constitution of Bangladesh
Article 102
Code of Civil Procedure (V of 1908)
Sections 151 and 153
The correction as made in the application by inserting plot number in the schedule without inserting the same in the schedule to the Plaint and the Decree though it was prayed for by the Decree Holder, it could at best be treated as erroneous in law and consequently not liable to be reviewed by this Court in Writ Jurisdiction, where such inclusion of the plot has contributed nothing to the detriment of the present petitioners and caused any injustice to them. . . .(22)

Code of Civil Procedure (V of 1908)
Section 65
The immovable property sold in execution of a decree shall become absolute as per Section 65 of the Code and the property shall be deemed to have vested in the purchaser  from the time when it is sold and not from the time when the sale becomes absolute or the date of confirmation of  sale. . . . (23)

Constitution of Bangladesh
Article 102
Code of Civil Procedure (V of 1908)
Section 65
Artha Rin Adalat Ain (VIII of 2003)
Section 12(8)
There is no provision in the Code of Civil Procedure which provides for the derailment of certain substantive consequences that necessarily ensue upon a confirmation of sale and invariably so in favour of an auction purchaser. It does not seem ever to have been doubted that once the sale is confirmed the judgment debtor is not entitled to get back the property even if he succeeds thereafter in having the decree against him reversed. . . .(24)

Bhavan Vaja and others Vs. Solauki Hanuji Khodaji Mansong and another, AIR (1972) SC 1371; Hemanta Kumar Ghosh Vs. Rajendra Mondal, 39 CWN, 1295; Midnapur Zamindary Co. Ltd. Vs. Abdul Jalil Mia, 37 CWN 500 (1933); Darap Ali Sadagar Vs. Najir Ahamed, 50 I.L.R. (1923); Pethaperumal Vs. Chidambaram 1954 Mad. 760; Janak Raj Vs. Gurdial Singh and another, AIR (1967) SC 608 and Prem Chand Day Vs. Mokhoda Desi, 17 ILR (1890) 699 ref.

Mr. Shah Md. Munir Sharif
. . . For the petitioner

Mr. M. Muksedl Islam
. . . For the Respondent No. 2

Mr. Md. Harun-Or-Rashid
. . . For the Respondent No. 3

Writ Petition No. 7647 of 2013
 
JUDGMENT
Mahmudul Hoque, J:

In this application under Article 102 of the Constitution of Bangladesh a Rule Nisi has been issued at the instance of the Petitioner calling upon the Respondents to show cause as to why the  Notice for auction published in the daily “Inquilab” and “Bhorer Kagoj”  both dated 24.1.2013 ( Annexures ‘F’ and ‘F-1’ ) shall not be declared  to be without any lawful authority  and is of no legal effect and as to why Order No. 17 dated 24.2.2013 ( Annexure–‘D’), Order No.21 dated 16.5.2013 and Order No. 22 dated  5.6.2013 ( Annexure ‘E-3’) passed in Artha Execution Case No. 69 of 2013 and Order No.33 dated 3.7.21013 passed In Miscellaneous Case No.28 of 2013  all the orders passed by Artha Rin Adalat, 2nd Court, Dhaka shall not be   declared to have been passed without lawful authority and  are of no legal effect and/ or  such other or further order or orders passed as to this Court may seem fit and proper.

Facts relevant for disposal of this Rule, in brief, are that the Respondent No.2 as plaintiff instituted Artha Rin Suit No. 188 of 2011 for recovery of loan amounting to Tk. 26,58,57,855.48  in the Artha Rin Adalat, 2nd Court, Dhaka against the Petitioners as defendant. In the schedule to the plaint the mortgaged property included as schedule B. The said Artha Rin Suit was decreed on 17.1.2012. Thereafter for realization of the decretal amount the Respondent- Bank filed Artha Jari Case No. 69 of 2012. The mortgaged property was placed on auction under Section 33(1) of the Artha Rin Adalat Ain, 2003 (“Ain”) fixing 08.01.2013. Three bidders participated in the auction, but the did was not accepted by the Adalat being found the price low.

Thereafter, the property again was placed on auction under Section 33(4) of the Ain fixing 24.02.2013. On the date fixed four bidders participated in the auction and amongst them the bid of one Md. Nasiruddin was accepted being found highest. On 18.4.2013 the Decree Holder Bank filed an application under Section 151 read with Section 153 of the Code of Civil Procedure (“Code”) for correction of the Schedule B of the property to the Execution Application, Plaint and Decree. The Court fixed 16.5.2013 for hearing of the application. On that date the Petitioner No.1 filed an application under Order XXI Rule 83 of the Code read with Section 57 of the Ain praying for selling the property by private negotiation. On the same day the auction purchaser also filed an application under Order XXI Rule 92 of the  Code for confirmation of auction sale. The Court heard both the applications and upon hearing rejected the Petitioners application and allowed the application of the auction purchaser and thereby passed Order confirming the sale. Subsequently, on 5.6.2013, application filed under Section 151 and 153 of the Code was heard and allowed by the Court and directed to correct the schedule of Execution Case and to prepare Bainanama and send it to the Registration Office for registration.  On 27.6.2013 the petitioner No.1 filed an application under OrderXXI Rule 90 of the Code for setting aside the sale which was registered as Miscellaneous Case No. 28 of 2013. The Artha Rin Adalat heard the Miscellaneous Case and rejected the same Vide Order No. 33 dated 3.7.2013. Further case of the Petitioners are that the schedule to the Plaint and the Execution Application description of the property given as follows:-
 
All that piece and parcel of land measuring 14.33 (fourteen point three three) decimals situated in the District- Dhaka, Police Station- Fatulla, Sub-Registry Office- Narayangonj, under Dhaka Collectorate Touzi No. 1132, J.L. No. 192, Mouza- Isdair, C.S. Khatian No. 112, S.A. Khatain No. 96; butted and bounded as follows;
On the North: Land of Mr. Azim Mia. On the       
South: Land of Mr. Abdul Khalaeque Sarder.
On the East: Land of Mr. Akrob Ali
On the West: Read of District Board.
Along with all structures and building constructed or to be constructed therein together with all rights, interests, title, easements etc. attached thereto or appurtenance to the property.  
 
It is pointed out by the Petitioners that in the schedule above quoted no plot number has been mentioned. But in the auction notice published under Section 33(4) of the Ain in the daily “Inquilab” and “Bhorer Kagoj”  on 24.1.2013 description of the property given as follows:- জেলা- নারায়ণগঞ্জ, থানা- ফতুল্লা, সাব-রেজিষ্ট্রি অফিস- ফতুল্লা, ঢাকা কালেক্টরেটের অ¿¹র্ভূক্ত তৌজি নং- ১১৩২, জে, এল নং- ১৯২, মৌজা- ইসদাইর, সি, এস, খতিয়ানভূক্ত ১১২, এস, এ খতিয়ান নং- ৯৬, সি,এস ও এস, এ দাগ নং- ১২০, আর, এস দাগ নং ১৬০ এ জমির পরিমাণ- ১৪.৩৩ ডেসিমেল.

Asserting that the description of the property as quoted above is different from the description given in the schedule to the Plaint, Decree as well as in the Execution Application, the Petitioners submits that the Executing Court ought to have published the auction notice as per schedule contained in the Execution Application and Decree. The Petitioners now contend that the Court in violation of law published the auction notice and amended the schedule to the Execution Application on the prayer of the Decree Holder and as such the Impugned Order allowing correction of the schedule inserting Plot number is liable to be declared without lawful authority and is of no legal effect. It is further stated that the  rejection of the application  under Order XXI Rule 90 of the Code without allowing the Petitioner to adduce evidence and rejection of the application under Order XXI Rule 83 of the Code are also illegal and without lawful authority. The Decree Holder Bank is therefore submitted to have fraudulently published the auction notice, conducted auction sale and illegally amended the schedule of the Execution Application and as such the auction notice and subsequent sale of the property vitiates for the reason of illegality and fraud. At this juncture the Petitioners moved this Court against the Order of the Artha Rin Adalat by filing this application and obtained the present Rule and Order of stay.

The Respondent No.2, Bank Decree-Holder Bank and the Respondent No.3 auction purchaser contested the Rule by filing separate Affidavit-in-Oppositions.

The Respondent No.2 in its Affidavit-in-Opposition contended that the writ petition is not maintainable in its present form. The matter raised in this application is merely a technical and a procedural matter which required to be proved by adducing evidence which is not permissible under the writ jurisdiction. It is also stated that the property described in the schedule to the Plaint in suit was according to the Deed of Mortgage and Power of Attorney. Further it is stated that the property sold in auction is the property mortgaged by the mortgagor with the Bank and not the property other than the mortgaged property. Non-inclusion of plot in the Mortgage Deed and schedule to the plaint is merely an omission occurred due to inadvertence. The Khatian numbers, area of land and identification of the mortgaged property are not disputed by the Petitioners. It is also not disputed that the property sold in auction inserting plot number in the schedule of the Execution Application are the properties other than the mortgaged property. As such the Court committed no illegality in allowing the application inserting plot number in the schedule to the Execution Application. It is also stated that there was no illegality in holding auction sale by the Court below.

Respondent No.3, the auction purchaser contended that he is a bonafide purchaser of the property with value. He paid Tk=1,25,10,000.00 as consideration for the property and accordingly  got Sale Certificate registered and delivery of possession of the property. At this stage the present application is not at all maintainable. It is also stated that to get the auction sale set aside there is provisions in the Code which the Petitioners availed of by filing application under Order XXI Rule 90 of the Code that was rejected by the Court upon contested hearing. So, nothing left for the present Petitioners to agitate further about the validity and propriety   of the auction sale held.

Mr. Shah Munir Sharif, the learned Advocate appearing for the Petitioners submits that the Artha Rin Adalat committed illegality in accepting the bid of the auction purchaser by its Order No. 17 dated 24.2.2013 on the ground that the auction notice published in the daily news paper containing description of the property does not tally with the schedule of the property to the Execution Application. He further submits that the Executing Court cannot go beyond the decree. But in the instant case the Executing Court corrected the schedule of property in the Execution Application which is absent in the schedule to the Plaint as well as in the Decree. It is also argued that the application filed by the Petitioners under Order XXI Rule 90 of the Code was rejected by the Artha Rin Adalat without allowing the Petitioners to adduce evidence. As such the auction sale is illegal and without lawful authority.

Mr. M. Moksedul Islam, the learned Advocate appearing for the Respondent No.2 Bank submits that the Artha Rin Adalat in holding auction sale committed no illegality. The Court as per provision of law for the first time published auction notice under Section 33(1) of the Ain for sale of the property but the price quoted in the said auction found low. Consequently said bid was not accepted by the Court. Subsequently the Court below published auction notice under Section 33(4) of the Ain for the second time and in the said sale four bidders participated in the auction and amongst them Respondent No.3’s, quotation   being found highest was accepted by the Court upon compliance of the provisions of law. Regarding Order No. 17 dated 24.2.2013  Mr. Islam submits that in accepting the bid of the Respondent No.3, the Court in its Order  specifically mentioned that the  price quoted by the highest  bidder is the price more than the mouza rate of the  respective area determined by the Government. In these circumstances there was no illegality and irregularity in the auction held. He further submits that admittedly the property mortgaged with the Bank by the mortgagor-Petitioners was sold in auction and there is no dispute regarding identity, quantity and location of the mortgaged property. Mere omission to include the plot number in the schedule to the Mortgage Deed, Plaint in Suit and Execution Application  is not fatal and for such technical reason the sale cannot be termed to be illegal or vitiated by any illegality. Referring the  schedule of the property to the title deed of the mortgagors, Mr. Islam  submits that Touzi number, C.S. and S.A. Khatian and the area of land as well as the boundary of the property are same with the schedule to the Mortgage Deed, Plaint and Execution Application. The plot as contained in the title deed is plot number 120 was not included in the schedule to the Mortgage Deed through inadvertence. It is a minor irregularity and for said irregularity the process of auction sale cannot be said to be illegal or without lawful authority. It is also argued that the Court by correcting the schedule to the Execution Application and inserting a plot number has not gone beyond the decree, because of the fact that the identity of the property has not been disputed by the judgment-debtors. The said insertion of plot number was done not to cure any defect but for the purpose of registration of the sale certificate effectively with the Registration Office as required by them.

Mr. Harun-Or-Rashid, the learned Advocate appearing for the Respondent No.3, auction purchaser submits that after long lapse of time the Petitioners came before this Court challenging the said sale which has already been taken effect to. He also submits that  the Executing Court empowered in  law to correct any error or  omission under Sections 151 and 153 of the Code  and Section 57 of the Ain to secure ends of justice.  There was no illegality in allowing the application filed under sections 151 and 153 of the Code for correction of the schedule to the Execution Application. He also submits that the Rule was issued by this Court restraining the Respondent from taking over possession after effecting delivery of possession of the property to the auction purchaser. Therefore, the auction purchaser cannot be restrained from enjoyment of the property purchased in auction. 
Heard the learned Advocates for the parties, perused the Application, Affidavit-in-Oppositions and annexures annexed thereto.

The Petitioners in this application challenged as many as three Orders of the Artha Rin Adalat being Order No. 17 dated 24.2.2013, accepting the bid, Order No. 21 dated 16.5.2013 rejecting the Petitioners application under Order XXI Rule 83 CPC and confirming   the sale and Order No. 22 dated 5.6.2013 allowing amendment of the application of the Decree Holder under Sections 151 and 153 of the Code.

It appears that the argument of the Petitioners Counsel mainly centered to Order No. 22 dated 5.6.2013 by which the Artha Rin Adalat inserted plot number of the mortgaged property in the schedule to the Execution Application.  Mr. Shah Munir Sharif assailing the said Order submits that in the schedule to the Plaint and Decree no plot number was mentioned and in the Execution Application also plot number is absent. But in publishing auction notice the Court for the first time included plot number without amendment of the Plaint, Decree and the Execution Application. After confirmation of sale and before registration of the Sale Certificate the Artha Rin Adalat on an application filed by the Decree Holder under Sections 151 and 153 of the Code read with Section 57 of the Ain inserted plot number in the schedule to the Execution Application. But the Plaint and the Decree remained unamended. As such the executing Court gone beyond the decree  which  it cannot do according to law. To appreciate the submissions of the learned Counsel   for the Petitioners the schedule to the title deed of the mortgagors may be looked into which runs thus:- জিলা-ঢাকা, থানা-ফতুল্যা ও সাব রেজিষ্টারী নারায়নগঞ্জের অধিন ঢাকা কালেক্টরেটের ১১৩২ নং তৌজি ভূক্ত: সে: মে: ১৯২ নং মৌজা-ইসদাইর সিÛত: সি, এস, ১১২নং খতিয়ানের লিখিত এস, এ, ৯৬ নং খতিয়ান ভূক্ত: ১২০ একশত বিশ দাগের সাবেক নাল জমি হালে ভিটি ভূমি ১৪  (পনে পনের) শতাংশ সাফ বিত্র্রীত বটে z ইহার চৌহুদ্দী উত্তরে-মো: আজিম মিঞা দক্ষিণে-আব্দুল খালেক সরদার পূর্বে-আত্র্রব আলী পশ্চিমে-জেলা বোর্ডের রাস.

It appears that the above quoted schedule to the title deed of the mortgagors contains Touzi number, Khatian number, plot number, area and boundary. In the schedule to the Mortgage Deed, Power of Attorney, Plaint and Decree, the Touzi number, Khatian number, quantum of land and the boundaries are same, only plot number left out. It is true that the Petitioners did not deny the identity of the mortgaged property or claim that the property sold in auction are not the property mortgaged by the mortgagors. But only plea taken by the Petitioners is that there is no plot number in the Mortgage Deed, schedule to the Plaint and in the Decree. Subsequent insertion of Plot number by the Court upon an application of the Decree Holder is illegal and without lawful authority. It appears that the mortgaged property is covered by C.S. and S.A. plot No. 120. But the said plot was not mentioned in the Deed of Mortgage as well as in the Artha Rin Adalat proceedings.  This Court do not disagree with the submission of the learned Counsel for the Petitioners on the point that the Executing Court cannot go beyond the decree but facts remain that the Petitioners did not deny or dispute the identity of the property and it is also not the case of the Petitioners that the Bank sold the property not mortgaged with the Bank as security by bringing an amendment in the schedule to the application.

The only question is whether the law is so helpless as to be unable to give effect to the decree passed by the court. The law is not helpless. This court finds that the learned Judge of the Artha Rin Adalat construed the decree in the light of admitted fact that the property sold by auction, is, indeed, property actually mortgaged as security against loan. In this situation the Adalat in an appropriate case to ascertain the circumstances under which the decree was passed and ordered sale of the property by auction can consider the application for correction of the schedule maintaining true intent and purpose of the decree.
 
In the case of Bhavan Vaja and others-Vs- Solauki Hanuji Khodaji Mansong and another, reported in AIR (1972) SC 1371 it has been held that;
 
“It is true that an executing court cannot go behind the decree under execution. But that does not mean that it has no duty to find out the true effect of that decree. For construing a decree it can and in appropriate cases it ought to take into consideration the pleadings as well as the proceedings leading upto the decree. In order to find out the meaning of the words employed in a decree, the court often has to ascertain the circumstances under which these words came to be used. That is the plain duty of the executing court and if that court fails to discharge that duty it would be deemed to have failed to exercise the jurisdiction vested in it.”
 
The underlying rationale for such revisitation of the decree by an executing Court was endorsed in Hemanta Kumar Ghosh Vs. Rajendra Mondal Case reported in 39 CWN, 1295, the Revision Court found jurisdiction to so amend a decree should it not correctly represent what was decided or intended to be decided. The only qualification to such amending authority is that it ought not to result in any injustice. Indeed, the Court in the Hemanta Kumar Ghosh Case referred to an earlier decision in Midnapur Zamindary Co. Ltd.-Vs-Abdul Jalil Mia, reported in 37 CWN 500 (1933) which, subscribing to the ratio in Hatton -Vs- Harris reported in 1892 A.C. 547, held that :
 
“The Court has power to amend a decree in order to bring it into conformity with the judgment at any time even after the decree has been partly executed-the only limitation being that the Court may deem it inexpedient or inequitable to exercise its powers when third parties have acquired rights under the erroneous decree without a knowledge of the circumstances which would tend to show that the decree was erroneous.”
 
Indeed was also held in the Midnapur Zamindary Co. Ltd. Case that:
 
“Although an executing Court cannot go behind the decree where the executing Court and the Court which passed the decree are one and the same, the Court can amend the decree in the course of execution.”

This Court finds that the property in question covered by Touzi No. 192,  C.S. Khatian No. 112 , S.A. Khatian No. 96 butted and bounded  by definite boundary as  admitted by the parties to the litigation . In such a situation it was not necessary for the Decree Holder Bank to amend the schedule inserting plot number wherein specific boundary, Khatian number and quantum of land are same as in the title deed of the mortgagors. It is in this Court’s view that inclusion of plot number in the Execution Application was a mere surplusage, not calculated to mislead anybody. In the case of Shafiuddin Kazi  alias Safiruddin Vs. Moslem Ali Howlader and others reported in 12 D.L.R. (1960), 266. It was held that, “boundaries as well as area both are mentioned in the document. In case of difference between the two, boundaries to prevail.” In the case of Darap Ali Sadagar Vs. Najir Ahamed reported in 50 I.L.R. (1923) (Cal) 394 it was  held that;
 
“As soon as there is an adequate and sufficient definition, with convenient certainty, of what is intended to pass by a deed, any subsequent erroneous addition will not vitiate it.”
 
In the light of the observations made in the above quoted decisions we are of the view that insertion of Plot number was not at all necessary where specific boundary of the Mortgaged property given and the Executing Court committed no illegality by inserting Plot number in the schedule considering and construing the facts that the property sold by auction are the property Mortgaged to the Decree  Holder Bank.
 
In other words, this amendment contributes nothing to this Court’s understanding of the subject matter in dispute. The correction as made in the application by inserting plot number in the schedule without inserting the same in the schedule to the Plaint and the Decree though it was prayed for by the Decree Holder, it could at best be treated as erroneous in law and consequently not liable to be reviewed by this Court in Writ Jurisdiction, where such inclusion of the plot has contributed nothing to the detriment of the present petitioners and caused any injustice to them. Moreover, the petitioners raised this technical question at a belated stage after delivery of possession of the property to the auction purchaser. It is also to be mentioned that the petitioners filed various applications to  forestall the execution process but failed. By filing this application also tried to achieve a goal indirectly on a technical point.
 
Section 65 and Rules 82 to 103 of Order 21 of the Code deal with the auction sale of immovable property in an execution proceeding. To get the sale set aside the judgment debtor has two options under Rules 89 and 90 of Order 21 of the Code. Rule 89 gives a right to have the sale set aside on deposit of bid money with 5% interest thereon within 30 days of the sale held. Rule 90 of Order 21 on the other hand gives a right to file an application seeking set aside sale on the ground of irregularity or fraud in the process of auction sale. Rule 92(1) provides that where no application is made under Rules 89,90 or 91 and where such application is made and disallowed, the court shall make an order confirming the sale and thereupon the sale shall become absolute and the court shall grant a certificate specifying the property sold and the name of the person who at the time of sale was declared to be purchaser under Rule 94 and the immovable property sold in execution of a decree shall become absolute as per Section 65 of the Code and the property shall be deemed to have vested in the purchaser  from the time when it is sold and not from the time when the sale becomes absolute or the date of confirmation of  sale. In this instant case the petitioner exhausted the provision of Rule 90 of Order 21 of the Code. Subscribing  to the ratio decidendi in Pethaperumal -Vs- Chidambaram reported in AIR 1954 Mad. 760 this court holds that certain substantive consequences follow  on the issuance  of a sale certificate in law taking the form of (a) the purchaser’s title to the property becoming perfected and (b) his right to possession becoming unimpeachable. It is, therefore, held by this court resultantly that nothing detracts from any of these rights above enumerated at any point of time after the issuance of a sale certificate and delivery of possession. Armed with such a perfected title and an unimpeachable right to possess, it, therefore,   stands to reason, that no challenge to the auction sale or, in particular, the rights of the auction purchaser Respondent No.3 can be mounted with any hope of success as otherwise purported to have been done repeatedly at the behest of the judgment debtor petitioners by appealing to the various provisions of the Code and the Act.
 
There is no provision in the Code of Civil Procedure which provides for the derailment of certain substantive consequences that necessarily ensue upon a confirmation of sale and invariably so in favour of an auction purchaser. It does not seem ever to have been doubted that once the sale is confirmed the judgment debtor is not entitled to get back the property even if he succeeds thereafter in having the decree against him reversed. As thus observed in the case of Janak Raj -Vs.- Gurdial Singh and another reported in AIR (1967)  SC 608 . Given, therefore, that once the auction is complete no relief is available against such auction sale but the mortgagor may proceed against the mortgagee bank for compensation if it is proved that there was illegality in the auction sale as observed by our apex court in the case of Sonali Bank, Shilpa Bhaban Corporate Branch, Dhaka Vs. Artha Rin Adalat, Narayanganj and others reported in 15 MLR (AD) 20, wherein it was held that;
 
“In view of the provision of law to the effect that once an auction sale is complete no relief is available against such auction sale but the mortgagor may proceed against the mortgagee bank for any compensation, if it is proved that there was illegality in the auction sale.”
 
Finally, the petitioners Counsel raised a point of  territorial jurisdiction of the  Court as the property situated in the District Narayangonj though in the instant application said question was not  raised and the Rule was not issued on that point. However, this Court examined the submissions made by the petitioners Counsel and the point raised. It appears that the matter involved in this case is not a matter in between the decree holder and the judgment debtor. Here the matter is involved with a third party i.e. the auction purchaser who acquired a legal right as auction purchaser for valuable consideration. Had it been a case in between the Decree-Holder and Judgment Debtor and a case of acquiring right of possession and enjoyment of the property by the Bank Decree Holder under Section 33(5) of the Ain or acquiring a certificate of title under Section 33(7) of the Ain, the situation would have been otherwise as observed in the case of Prem Chand Day-Vs-Mokhoda Desi reported in 17 ILR (1890) 699 referred by the petitioners counsel in support of his submission. This Court is of the view that if the claim of the judgment debtors is entertained at this stage it will tantamount to declare the title of the auction purchaser nugatory, thereby, extending and giving an unwarranted benevolence to the petitioners.

However, if the petitioners as judgment debtors feel aggrieved by the sale of the property in an unusual manner or irregularly, they can claim compensation against the Decree Holder Bank by filing a properly constituted suit for compensation if so advised.
 
In the facts and circumstances and observations made hereinabove we do not find any merit in this Application and the Rule Nisi issued calling for interference by this Court.

In the result, the Rule is discharged, however, without any order as to costs.

The order of restrain granted at the time of issuance of the Rule is hereby recalled and stand vacated.

Communicate a copy of this Judgment and Order to the Court concerned at once.

         Ed.