Md. Sheikh Fariduddin Vs. Sonali Bank and others, (Md. Nuruzzaman, J.)

Case No: Civil Revision No. 2500 of 2010

Judge: Md. Nuruzzaman, J And S. H. Md. Nurul Huda Jaigirdar, J.

Court: High Court Division,

Advocate: Mr. Tapan Kumar Chakraborty, Advocate ,

Citation: 2018(2) LNJ

Case Year: 2018

Appellant: Md. Sheikh Fariduddin

Respondent: Sonali Bank, Barishal Corporate Branch of Bagura Road, Barisal and others

Subject: Artha Rin Adalat Ain

Delivery Date: 2019-12-01

HIGH COURT DIVISION

(CIVIL REVISIONAL JURISDICTION)

Md. Nuruzzaman, J

And

S. H. Md. Nurul Huda Jaigirdar, J.

 

Judgment on

28.01.2018

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Md. Sheikh Fariduddin

. . . Petitioner

-Versus-

Sonali Bank, Barishal Corporate Branch of Bagura Road, Barisal and others

. . . Opposite Parties

Artha Rin Adalat Ain (VIII of 2003)

Sections 41 and 44

While the Court is designated by a special law to act upon such special law in aid of procedural law, in other words, in aid of the Code of Civil Procedure the status of the Court would not be changed due to the application of general law. Any order passed by that Court arising out of special law i.e. Artha Rin Adalat Ain would be regularized within the purview of the special law not by general law.        . . . (22)

Code of Civil Procedure (V of 1908)

Section 115

We have found from the provision of law of Artha Rin Adalat against any order no revision lie which has been settled by the apex Court in the long line of catena. So, in view of the above settled proposition and discussions made herein above we find that if we allow the application for restoration, even then, the petitioner would not be successful in a 2nd revision i.e. after revival of the above Rule of the instant Civil Revision.    . . . (23)

Aminul Hoque Vs. Janata Bank and others, 46 DLR 614; 53 DLR (AD) 9; 63 DLR (AD) 57 and 52 DLR (AD) 76 ref.

Mr. Tapan Kumar Chakraborty, Advocate

. . . For the petitioner

Mrs. Khalifa Shamsun Nahar, Advocate

. . . For the opposite parties No. 1.

JUDGMENT

Md. Nuruzzaman, J: The instant Rule was issued calling upon the opposite party Nos. 1-3 to show cause as to why the judgment and order dated 16.3.2010 passed by Additional District Judge, 1st Court Barisal, in Civil Revision No. 44 of 2009 dismissing the Civil Revision and affirming the judgment and order dated 04.5.2009 passed by the learned Joint District Judge, 1st Court, Barisal and Artha Rin Adalat, Barisal, in Miscellaneous Case No. 12 of 2008 should not be set aside and/or pass such other or further order or orders as to this Court may seem fit and proper.

2.            The short facts, lead to rise the instant revisional application, succinctly, are that the opposite party No. 1 as plaintiff instituted Artho Rin Case No. 17 of 2006 in the 1st Court of Joint District Judge and Artharin Court, Barisal against the petitioner for realization of loan of Taka 4,22,498.00. The plaintiff by suppression of summons and notices obtained an ex-parte decree on 05.6.2007. The plaintiff as decree holder by dint of ex-parte decree dated 05.6.2007 put in the decree for execution. The decree holder again by suppressing the notice of sale proclamation and without complied with the provision laid down in Artha Rin Adalat Ain 2003 put the valuable property with dwelling homestead for auction sale, secretly beyond the knowledge of the petitioner.

3.            The petitioner coming to know about the ex-parte decree passed in Artha Rin Case No. 17 of 2006 filed Miscellaneous Case in the same Court under section 19 of the Artha Rin Adalat Ain of 2003 depositing 10% money of decreetal amount. The aforementioned Miscellaneous Case being Miscellaneous Case No. 11 of 2008 is till pending.

4.            However, the decree holder Bank sold the property upon so called auction which was purchased by an employee of the said Bank named Khan Kamal Hossain and his brother by practicing of fraud. It is alleged that property worth more than 60 lacs had been sold only Tk. 7 lacs. Even though it was not mentioned in sale proclamation that it is the dwelling building. Thereafter the petitioner coming to know about the auction sale on 25.6.2008 filed a Miscellaneous Case being No. 12 of 2008 under Order 21 Rule 90 of the Code of Civil Procedure in the Court of Joint District Judge, 1st Court and Artha Rin Adalat Barisal for setting aside the auction sale dated 18.02.2008.

5.            The Executing Court rejected the application on 04.5.2009 observing that there had been neither short deposit and nor material irregularity in publishing and conducting auction sale has been occurred.

6.            The petitioner being aggrieved by the order dated 04.5.2009 passed by the learned Judge, Artha Rin Adalat,  in Miscellaneous Case No. 12 of 2008 preferred a Civil Revision in the Court of District Judge, Barisal being Civil Revision No. 44 of 2009.

7.            The learned District Judge, eventually, transferred the said Civil Revision to the Court of Additional District Judge, 1st Court, Barisal who after hearing both sides dismissed the Civil Revision and affirmed those passed by the Joint District Judge and Artho Rin Adalat by his judgment dated 16.3.2010.

8.            Feeling aggrieved by the impugned order dated 16.3.2010 the judgment debtor petitioner preferred the instant revisional application under section 115(1) of the Code of Civil Procedure and obtained the instant Rule with an order of stay.

9.            The instant revisional application has been posted in the list for hearing with the name of the learned Advocate for the petitioner for few weeks. On 06.12.2017 when the matter was called on for hearing no one appears to press the Rule.

10.        Consequently, on 06.12.2017 the instant Rule was discharged for default for non appearance of the learned Advocate for the petitioner.

11.        The petitioner on 07.12.2017 by an application sought for restoration of the instant Rule. The opposite party decree holder Sonali Bank Ltd. contested against the application for restoration by filing counter affidavit.

12.        Mr. Tapan Kumar Chakraborty, the learned Advocate for the petitioner took us through the revisional application along with application for restoration. Mr. Chakraborty has submitted that when the matter was taken up for hearing in the afternoon unfortunately the learned Advocate for the petitioner was not present in Court and the Rule was discharged for default. He has submitted that the petitioner has no any other property accept this dwelling house. The petitioner would be suffered irreparable loss and injury if the Rule is not restored. It has been stated in the application that the lawyer of the petitioner extremely redundant for the latches and begs apology and mercy of the Court.

13.        This matter was adjourned for further hearing and on last occasion Mr. Chakraborty while advanced his argument the Court wanted to hear the matter on merit as to whether the revisional application is maintainable or not?

14.        Mr. Chakraborty in view of legal proposition for filing the Civil Revision against an order of rejection of an application under Order 21 Rule 90 of the Code of Civil Procedure relied to the precedent to the Case of Aminul Hoque –Vs- Janata Bank and others reported in 46 DLR, 614 and submitted that in view of the principle laid down in the aforesaid case law the 1st revision is maintainable. However, before pronouncement of the judgment today Mr. Chakraborty further submits that if there is any legal impediment in filing the revisional application against  the judgment and order passed in a revisional Case of Artha Rin Adalat the Court may give a chance to avail the legal forum in accordance with law.

15.        In view of a decision reported in 41 DLR(AD)-105 we have set about our mind to hear the matter on merit if any application for restoration is filed and it is found that if the application for restoration is allowed it would be futal exercise as in the original case, revision  or appeal there is no merit. In such situation litigant will continue the unnecessary litigation of which an ultimate result of the litigation is as clear as daylight. In the instant application for restoration we have heard the learned Advocate for the petitioner on merit in respect of Rule as well as application for restoration.

16.        On perusal the record as available before us it is divulged that the petitioner referred the instant revisional application unsuccessfully against the judgment and order dated 16.3.2010 passed by the Additional District Judge, 1st Court, Barisal in a 1st revision filed by the present applicant. At the time of hearing of the application for restoration it is clearly visible to this Court that an application filed under Order 21 Rule 90 of the Code of civil procedure either refuse or allow under rule 92 of the Code it is not revisable. However, as per the provision of Rule 1(j) it is appealable. The petitioner instead of filing appeal filed revisional application under section 115(2) of the Code of Civil  Procedure. Thereafter, unsuccessfully the petitioner took the litigation before this Court on an application under section 115(1) of the Code of Civil Procedure. It is contendent by the learned Advocate for the petitioner that the revisional application was filed in the Court of 1st instance in view of decision reported in 46 DLR (HCD)-614.

17.        In view of the above legal proposition in respect of revision against an order passed by the Artha Rin Adalat we meticulously examined the decision referred by the learned Advocate for the petitioner. On a careful reading of the judgment pronounced by his lordships Mr. Justice B.B. Roy Chowdhury it appears that the order challenged before their lordships before the enactment of Artha Rin Adalat Ain 2003 rather, in view of the provision as enacted in Artha Rin Adalat Ain 1990 (Act IV-1990).

18.        However, the case in hand would be regularized not in accordance with the Artha Rin Ain 1990 but surely in accordance with the provision of Artha Rin Adalat Ain 2003. Because the original suit was filed in the year 2006 and the Artha Rin Case was registered as Case No. 17 of 2006. Therefore, we find no merit in the contentions advanced by Mr. Chakroborty the learned Advocate for the petitioner.

19.        In view of the above discussion we are of the considered view to settle the issue and answer the above legal proposition it is necessary to refer to sections 41 and 44 of the Artha Rin Adalat Ain 2003 which runs as follows:-

41z (1) j¡jm¡l ®L¡e fr, ®L¡e AbÑ GZ Bc¡m­al B­cn h¡ ¢Xœ²£ à¡l¡ pwr¥Ü qC­m, k¢c ¢Xœ²£L«a V¡L¡l f¢lj¡Z 50 (f’¡n) mr V¡L¡ A­fr¡ A¢dL qu, a¡q¡ qC­m Ef-d¡l¡ (2) Hl ¢hd¡e p¡­f­r, 1[ flhaÑ£ 60(o¡V) ¢ch­pl] j­dÉ q¡C­L¡VÑ ¢hi¡­N, Hhw k¢c ¢Xœ²£L«a V¡L¡l f¢lj¡Z 50 (f’¡n) mr Abh¡ acÚA­fr Lj qu, 2 [ a¡q¡ qC­m flhaÑ£ 30 (¢œn) ¢ch­pl j­dÉ ®Sm¡ SS Bc¡m­a Bf£m L¢l­a f¡¢l­hez]   

(2)             Bf£mL¡l£, ¢Xœ²£L«a V¡L¡l f¢lj¡­Zl 50% Hl pjf¢lj¡Z V¡L¡ h¡c£l c¡h£l  Bw¢nL ü£L«¢aül¦f eNc ¢Xœ²£c¡l B¢bÑL fТaù¡­e, Abh¡ h¡c£l c¡h£ ü£L¡l e¡ L¢l­m, S¡j¡ea ül¦f ¢Xœ²£ fÐc¡eL¡l£ Bc¡m­a Sj¡ L¢lu¡ Eš²l¦f Sj¡l fÐj¡Z clM¡Ù¹ h¡ Bf£­ml ®j­j¡l p¢qa Bc¡m­a c¡¢Mm e¡ L¢l­m, Ef-d¡l¡ (1) Hl Ad£e ®L¡e Bf£m L¡kÑ¡­bÑ Nªq£a qC­h e¡z

(3)             Ef-d¡l¡ (2) Hl ¢hd¡e p­aÅJ, ¢hh¡c£-c¡¢uL C¢aj­dÉ 19(3) d¡l¡l ¢hd¡e j­a 10% (cn na¡wn) f¢lj¡Z V¡L¡ eNc Abh¡ S¡j¡ea ¢qp¡­h Sj¡ L¢lu¡ b¡¢L­m, Aœ d¡l¡l Ad£­e Bf£m c¡­u­ll ®r­œ Eš² 10% (cn na¡wn) V¡L¡ Ef¢l-E¢õ¢Ma 50% (f’¡n na¡wn) V¡L¡ qC­a h¡c qC­hz

(4)             Ef¢l-E¢õ¢Ma ¢hd¡e¡hm£ p­šÆJ, h¡c£-B¢bÑL fТaù¡e HC d¡l¡l Ad£­e ®L¡e Bf£m c¡­ul L¢l­m, Eq¡­L Ef¢l-E¢õ¢Ma j­a ®L¡e V¡L¡ h¡ S¡j¡ea Sj¡c¡e L¢l­a qC­h e¡z

(5)             ®Sm¡ SS ®L¡e Bf£m NËqZ Ll¡ j¡œC ¢m¢Mai¡­h E­õM L¢l­he ®k, ¢a¢e ¢e­SC Eš² Bf£m öe¡e£ L¢l­he ¢Le¡, Hhw ¢a¢e ¢e­S Eš² Bf£m öe¡e£ e¡ L¢l­a ¢pÜ¡¿¹ NËqZ L¢l­m, Ae¢a¢hm­ð Eš² Bf£m¢V öe¡e£l SeÉ a¡q¡l A¢d­r­œl Ad£e ®L¡e HLSe A¢a¢lš² ®Sm¡ S­Sl ¢eLV, k¢c b¡­L, ­fÐlZ L¢l­he; Hhw ®L¡e A¢a¢lš² ®Sm¡ SS e¡ b¡¢L­m, ®Sm¡ SS ¢e­SC Eš² Bf£m nÐhZ L¢l­hez

(6)             Bf£m Bc¡ma, Bf£m Nªq£a qCh¡l flhaÑ£ 90(eîC) ¢ch­pl j­dÉ Eq¡ ¢eÖf¢š L¢l­h, Hhw 90 (eîC) ¢ch­pl j­dÉ Bf£m¢V ¢eÖf¢š L¢l­a hÉbÑ qC­m, Bc¡ma, ¢m¢Mai¡­h L¡lZ E­õMf§hÑL, Eš² pjup£j¡ Ae¢dL B­l¡ 30 (¢œn) ¢chp h¢dÑa L¢l­a f¡¢l­hz

44z (1) AbÑ GZ Bc¡ma, j¡jm¡l p¢WL J f¢lf§ZÑ ¢hQ¡l J eÉ¡u ¢hQ¡­ll fЭu¡S­e Hhw ¢hQ¡l L¡kÑœ²­jl AfhÉhq¡l fТa­l¡dL­Òf ®kl¦f A¿¹hÑaÑ£L¡m£e B­cn fÐc¡e Ll¡ pwNa j­e L¢l­h, ®pl¦f A¿¹hÑaÑ£L¡m£e B­cn fÐc¡e L¢l­a f¡¢l­hz

(2) Ef-d¡l¡ (3) Hl ¢hd¡e p¡­f­r, HC BC­el Ad£­e ®L¡e Bc¡ma LaѪL fÐcš ®L¡e A¿¹hÑaÑ£L¡m£e B­cn­L EµQal ®L¡e Bc¡m­a Bf£m h¡ ¢l¢ine BL¡­l ¢ha¢LÑa Ll¡ k¡C­h e¡z

(3) Ef- d¡l¡ (2) Hl ¢hd¡e p­šÆJ, ®L¡e fr d¡l¡ 41 Hl Ad£e c¡­ulL«a Bf£m HCl¦f ®L¡e ¢hou k¤¢š² ¢qp¡­h NËqZ L¢l­a f¡¢l­h, k¡q¡ Ef¢l-E¢õ¢Ma ¢hd¡­el L¡l­Z ¢ha¢LÑa Ll¡ k¡u e¡C, Hhw Bf£m Bc¡ma Il¦f ¢hou ¢h­hQe¡u NËqZ L¢lu¡ eÉ¡u¢hQ¡­ll ü¡­bÑ Efk¤š² ®k ®L¡e B­cn fÐc¡e L¢l­a f¡¢l­hz

20.        So, it is visible from the language of the law that the legislature given the provision against any order passed by the Artha Rin Adalat in view of Sub section (3) of section 44 and section 41 or any ad interim order passed by the Artha Rin Adalat is not revisable but appealable in accordance with law. However, Mr. Chakraborty once again argued that the order passed by the executing Court on an application under Order 21 Rule 90 of the Code of Civil Procedure which means the legal remedies must be avail in accordance with provision of Code of Civil Procedure not in accordance with a provision of Artha Rin Adalat Ain, 2003.

21.        In view of the above submission we are of the view that for better understanding and ready reference it would be noteworthy to quote the provision of Rule-90 of order-XXI and provision of Rule 1(J) of the Order XLIII of the Code of Civil Procedure which reads as follows :

Rule 90 of order XXI: - Application to set aside sale on ground of irregularity or fraud. (1) Where any immoveable property has been sold in execution of a decree, the decree-holde3r, or any person entitled to share in a rateable distribution of assets, or whose interests are affected by the sale, may apply to the Court to set aside the sale on the ground of a material irregularity or fraud in publishing or conducting it

1[ or on the ground of failure to issue notice to him as required by rule 22 of this Order]:  

2[ Provided (i) that no sale shall be set aside on the ground of such irregularity, fraud or failure unless, upon the facts proved, the Court is satisfied that the applicant has sustained substantial injury by reason of such irregularity, fraud or failure.

(ii) that no sale shall be set aside on the ground of any defect in the proclamation of sale at the instance of any person who after notice did not attend at the drawing up of proclamation or of any person in whose presence the proclamation was drawn up, unless objection was made by him at the time in respect of the defect relied upon.]

R.92 of order XXI- Sale when to become absolute or be set aside. (1) Where no application is made under rule 90 or rule 91, or where such application is made and disallowed, the Court shall make an order confirming the sale, and thereupon the sale shall become absolute.

(2) Where such application is made and allowed, and where, in the case of an application under rule 89, the deposit required by that rule is made within thirty days from the date of sale, the Court shall make an order setting aside the sale.

Provided that no order shall be made unless notice of the application has been given to all persons affected thereby.

(3) No suit to set aside an order made under this rule shall be brought by any person against whom such order is made.

Order XLIII of the Code: Rule (1) Appeal from orders. An appeal shall lie from the following orders under the provisions of section 104, namely:-

(a)      …………….

(b)     ……………

(c)      ……………….

(d)     ………………

(e)      ……………..

(f)      ……………….

(g)     ……………….

(h)     ………………..

(i)       ………………..

(j)       an order under rule 72 or rule 92 of Order XXI setting aside or refusing to set aside a sale;

22.        In view of the above submission of the learned Advocate for the petitioner we are of the considered view that while the Court is designated by a special law to act upon such special law in aid of procedural law, in other words, in aid of the Code of Civil Procedure the status of the Court would not be changed due to the application of general law. Here, the decree passed by as the Court itself was a Artha Rin Court  and at the same time the very subject also arose  from Artho Rin matter, so any order passed by that Court arising out of special law i.e. Artha Rin Adalat Ain would be regularize within the purview of the special law not by general law.

23.        Since, we have found from the provision of law of Artha Rin Adalat against any order no revision lie which has been settled by the apex Court in the long line of catena which reported in 53 DLR (AD)-9, 63-DLR(AD)-57, 52-DLR(AD)-76. So, in view of the above settled proposition and discussions made herein above we find that if we allow the application for restoration, even then, the petitioner would not be successful in a 2nd revision i.e. after revival of the above Rule of the instant Civil Revision.

24.        In that view of the matter, we are of the considered view that the exercise of the jurisdiction to restore the Rule would be futal exercise dragging the litigant to continue his fruitless litigation. In view of the above facts and circumstances and settled legal proposition we are not inclined to allow the application for restoration. In view of the above discussions and submissions advanced by the learned Advocate for the petitioner prayed for some remedy in his favour we are of the view that the petitioner if want to take any legal steps in accordance with law, if so advise that would be settled in accordance with law as well as merit of the case.

25.        In the result, the application is rejected.

26.        The office is directed to communicate this order and send down the L.C. records to the Court below at once.

Ed.



Civil Revision No. 2500 of 2010