Mrs. Rafia Akhter Baby Vs. Bangladesh House Building Finance, (Md. Nuruzzaman, J.)

Case No: Civil Revision No. 487 of 2012

Court: High Court Division,

Advocate: Mr. A.S.M. Rahmatullah, Advocate ,

Citation: 2018(2) LNJ

Case Year: 2018

Appellant: Mrs. Rafia Akhter Baby

Respondent: Bangladesh House Building Finance Corporation

Subject: Code of Civil Procedure

Delivery Date: 2019-12-02

HIGH COURT DIVISION

(CIVIL REVISIONAL JURISDICTION)

Md. Nuruzzaman, J

And

S. H. Md. Nurul Huda Jaigirdar, J

 

Judgment on

09.01.2018 and 14.01.2018

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Mrs. Rafia Akhter Baby

. . . Petitioner

-Versus-

Bangladesh House Building Finance Corporation

. . . Opposite parties

Code of Civil Procedure (V of 1908)

Section 115

Before amendment of the Code by Act XXIX of 2003 as a Higher Court the High Court Division can pass an order under section 115(1) of the Code in its discretion as a supervisory Court but after amendment of the Code in the year of 2003 the Court must act insofar as it relates to any order challenged before it in accordance with the provision as provided in section 115 (1) of the Code as a higher Court of revisional jurisdiction. In execution proceeding there is no scope to apply the inherent jurisdiction of the Court in favour of the petitioner when the petitioner has once again failed to repay the loan money as per his on admission and thereafter she did not act fairly as per his own volition. Section 151 can be invoked only to secure the ends of justice and to prevent the abuse of the process of the Court, however, we find in the events of the present case, the petitioner once again by filing application under section 151 tried to prevent the proceeding started in accordance with law instead of securing the ends of justice. We are, therefore, of the opinion that in rejecting an application under section 151 of the Code the executing Court committed no error of law.      . . . (31)

Code of Civil Procedure (V of 1908)

Section 115

The petitioner obviously can file an application challenging the proclamation and auction sale of the suit property if any material illegality, irregularities or any violation of provision of law if has been committed by the Court in the proceeding of the execution regarding the proclamation and auction sale but instead of that the petitioner filed an application under section 151 of the Code for repay the outstanding loan due to her. The proceeding of the execution the Executing Court cannot go beyond the original order of the Court nor can vary the same by invoking the inherent power of the Court as provided in section 151 of the Code in the name of ends of justice.          . . .(32)

Code of Civil Procedure (V of 1908)

Section 115(1)

If the Court issue show cause notice against the opposite party he must provide time to give his reply and get an opportunity of being heard, before getting reply and without hearing the opposite party should not pass such order which make the Rule otherwise absolute before hearing as in the instant Rule issuing order without hearing the opposite party directed the petitioner to deposit the whole loan amount within the certain period without considering the facts and circumstances of the instant case.               . . . (34)

Code of Civil Procedure (V of 1908)

Section 115(1)

We here must mention the cunning activities of the petitioner as she has suppressed the material facts. The petitioner if at the time of filing the instant Rule did not suppress the facts of depositing of the auction money by the auction purchaser before issuing of Rule in that case the order of direction would not have been passed in a manner as it has been passed. Further it may be mentioned here that such type of awkward incident would not be happened if at the time of issuance of the Rule, direction would not be given to the petitioner to deposit the whole decretal loan money instead of stay the further proceeding of the case.          . . . (39)

Abdul Wahab Vs. Ali Ahmed and another, 44 DLR (AD) 55; Abu Ahmed Abdul Hafiz and others Vs.  M.A. Hoque Shirajee, 1983 BLD (AD) 193; Azizul Huq Chowdhury Vs. Manzur Hossain and others BCR, 1984 (AD) 532 and Sukumar Sen and others Vs. Guranga Bejoy Das and others, 1989 BLD (AD) 162 ref.

Mr. A.S.M. Rahmatullah, Advocate

. . . For the petitioner

Mr. Salahuddin Ahmed with

Mr. A.K.M. Nurul Alam, Advocates

. . . For the Opposite party No.2

JUDGMENT

Md. Nuruzzaman, J. The instant Rule was issued on an application under section 115(1) of the Code of Civil Procedure calling upon the opposite parties to show cause as to why the impugned order No. 74 dated 30.01.2012 passed by the learned District Judge (in-charge) Dhaka, in Miscellaneous Case No. 474 of 2002 should not be set aside and/or such other or further order or orders as to this Court may seem fit and proper.

2.             The material facts, relevant, for disposal of the instant Rule, in short, are that, the opposite party Bangladesh House Building finance Corporation (Hereinafter referred in short as the Corporation) as petitioner filed an application under Article 27 (1) of the Bangladesh House Building Finance Corporation Order No. 7,  1973 (in short President Order of 1973) for realization of Tk. 19,58,346.75/-(Ninteen Lac fifty eight thousand three hundred forty six & Poisha Seventy Five) from the borrower opposite party (herein petitioner). Thereafter, the learned District Judge by his ex-partee judgment and order dated 17.06.2003 allowed the case.

3.             The Corporation as Judgment-Creditor by dint of judgment and order dated 17.06.2003 filed an application under clause 9 of Article 27 of the President Order of 1973 for realization of Tk. 21,86,688.80/-

4.             The application under clause 9 of Article 27 of the President Order of 1973 while was so pending judgment debtor Rafia Akter Baby on 22.01.2012 filed an application under section 151 of the Code of Civil Procedure (Hereinafter referred in short as the Code) praying for 24 instalments to pay the total money as claimed by the Judgment-Creditor Corporation. The Learned District Judge (in-charge) by his order dated 13.01.2012 rejected the said application for instalment.

5.             The judgment debtor being aggrieved by the order dated 13.01.2012 passed by the District Judge (in-charge) Dhaka, in Miscellaneous Case No. 474 of 2002 preferred the instant revisional application and obtained the present Rule with some direction.

6.             Mr. A.S.M. Rahmatullah, the learned Advocate appearing on behalf of the petitioner has submitted that in view of the Rule issuing order he has filed two affidavits in compliance, stating, the facts, annexing the photocopies of Challans showing the judgment debtor paid the full amount as claimed by the Corporation.

7.             The Corporation as the opposite party No.1 contested the Rule by filing counter affidavit stating, inter-alia, that the corporation got Tk. 33,19000/- from the petitioner however, in the counter affidavit they claimed further 6,35,560.17/- as outstanding to the loanee.

8.             The opposite party No. 2 contested the Rule by filing counter affidavit stating, inter-alia, that the opposite party    No. 1 preferred the Miscellaneous Case No. 474 of 2002 under Article 27(1) of the President Order No.7, 1973 before the Court of learned District Judge, Dhaka praying for recovery of money amounting Tk. 19,58,346.75/- by enforcing mortgage against the judgment-debtor petitioner.

9.             The above Miscellaneous Case was allowed vide order dated 17.06.2003. Thereafter, the Corporation preferred an application under Article 27(9) of the President Order No. 7, 1973 in order to execute the order dated 17.06.2003 by selling the mortgage properties in public auction. The petitioner has failed to make payment and accordingly, the learned District Judge published notice for auction in daily Ittefaq on  24.12.2011 inviting bid from the purchaser subject to deposit of 25% of claim amount of Tk. 19,58,346.75/-. Accordingly, the opposite party No. 2 participated in the bid on 22.01.2012 quoting Tk. 45,00,000.00 and submitted a pay order amounting to Tk. 5,00,000.00/- through a pay order issued from Pubali Bank Limited which is more than 25% of the bid amount and became the highest bidder. On 30.01.2012 the learned District Judge, directed to deposit the rest bid amount within 15(fifteen) days through Challan. The opposite party No. 2 auction purchaser on 07.02.2012 deposited Tk. 40,00,000.00/-, the rest bid amount through Challan and preferred an application for acceptance of the same. The learned District Judge kept the same with the record fixing the matter on next fixed date for order. Thereafter, on 16.02.2012 the opposite party No. 2 filed hajira and the petitioner submitted a lawyer certificate and prayed to stay of further proceeding of the Miscellaneous Case and the prayer was allowed.

10.         On 22.03.2012 was fixed for submitting the order of Hon’ble High Court Division accordingly, the order was submitted and the Court below stayed the further proceeding of the Miscellaneous Case.

11.         It is stated that the opposite party No. 2 participated in the bid and became the highest bidder and also submitted the entire bid amount of Tk. 45,00,000.00/- as evident from order sheet of Miscellaneous case No. 474 of 2002 but the applicant was not made a party at the time of preferring the revisional application.

12.         Mr. A.S.M. Rahmatullah, the learned Advocate appearing for the petitioner has submitted that the learned District Judge (In-Charge) has got no jurisdiction under Article 27(6) and 27 (7)(d) of the President Order No.7, 1973 to dispose of the application filed by the Corporation on taking the evidence before him, but the learned District Judge (In-charge) has done it, hence, the impugned order is liable to be set aside.

13.         He has further argued that in the light of the application of the petitioner the learned District Judge (In-Charge) ought to have issued the notice to the decree-creditor to show cause and investigate petitioner’s claim of re-payment of loan of Tk. 8,45000/- according to provision of Order 21 Rule 2 Sub-Rule-2 of the Code before ordering to deposit auction money by auction bidder by the impugned order, but he has failed to do so. Hence, the learned District Judge has committed an error of law resulting in an error in the decision occasioning failure of justice.

14.         He has pointed that the petitioner has all his sincerity tried to repay the rest of loan amount but without ascertaining actual figure of rest of loan money carry on prosecuting the instant proceeding, so, the lower Court have failed to consider the important aspect of the case, hence, the impugned order is liable to be set aside.

15.         He has further pointed that the lower Court failed to apply its jurisdiction vested to its in accordance with law under Rule 69(1) of Order XXI of the Code and ought to have adjourned or stopped auction but failed to do so and, as such, the impugned order is liable to be set aside.

16.         He has narrated that the petitioner is a widow of a wife of a freedom fighter having no other home to live excepting the schedule property and if the auction is confirmed, the petitioner will be homeless and considering the hardship, she may be given chance to repay all outstanding dues of corporation, hence, the impugned order may kindly set aside after paying all dues by instalment.

17.         He has lastly argued that under the President Order No.7, 1973 District Judge (In-charge) has got no authority to pass auction order and, as such, the impugned order dated 30.01.2012 is liable to be set aside for want of jurisdiction.

18.         Mr. Salahuddin Ahmed, the learned Advocate appearing for the opposite party No.1 has argued that the instant revisional application has been filed by the borrower on 12.02.2012 he referred the Rule issuing order which are as follows:

Let the records be called for and a Rule issue calling upon the opposite party to show cause as to why the impugned order No. 74 dated 30.01.2012 passed by the District Judge (In-charge), Dhaka in Miscellaneous Case No. 474 of 2002 should not be set aside and/or such other or further order or orders passed as to this Court may seem fit and proper

The Rule is made returnable within 04 (four) weeks from date.

The learned Advocate for the petitioner submits that the petitioner is ready and willing to pay Tk.4(four) lacs within one month from date and at the same time she was also ready and willing to pay the entire decretal amount by reasonable instalments.

In view of the submissions made by the learned Advocate for the petitioner (presumable upon obtaining instruction from his client) further proceedings of Miscellaneous Case No.474 of 2002 pending in the Court of District Judge (in-charge) Dhaka is hereby stayed for a period of 1(one) year subject to payment of Tk.4(four) lacs towards the decreetal amount within one month from date and the petitioner is also directed to carry on payment of the balance of the decreetal amount within the said period of one year upto February 28, 2013 by eleven equal instalments.

The learned Advocate for the petitioner is also directed to submit affidavit of compliance immediately after each of the payment of the said instalments as directed above, failing which the order of stay granted by this Court shall stand vacated.

19.         He has further submitted that the borrower as petitioner preferred the instant revisional application after depositing the auction money by the auction purchaser therefore, the instant Rule has become in-fructuous from its inception.

20.         He has further added that the petitioner intentionally did not make party the auction purchaser although in the impugned order dated 30.01.2012 the learned District Judge directed the auction purchaser to deposit the bid money within 15(fifteen) days from the date and thereby the petitioner has suppressed the material facts. According to Mr. Salahuddin Ahmed the auction purchaser by order dated 30.01.2012 deposited further 40,00,000.00/- Taka within the 07 (seven) days i.e. on 07.02.2012 intimating the Court about the depositing the rest of the auction money therefore, he argued that the instant Rule has become in-fructuous and liable to be discharged.

21.         Mr. A.K.M. Nurul Alam, the learned Advocate appearing for the added opposite party No. 2 auction purchaser.

22.         Mr. Alam categorically has pointed that the Rule issuing order has been passed in such a term from which it is crystal clear that at the time of issuance of the Rule it has been made absolute with a direction to the opposite party without giving a chance of being heard and to explain the position of the opposite parties.

23.         He has further added that the petitioner once again filed the application under section 151of the Code instead of filing proper application in higher Court as per Article-27 of the President Order No.7, 1973. He has further pointed that the petitioner on 18.01.2012 filed an application under section 151 of the Code after passing the Judgment on 17.06.2003 however, the petitioner filed the application for depositing money and to pay the decreetal amount by way of 24 (twenty four) instalment which was rejected by order dated 22.01.2012 however, the petitioner did not challenge that order instantly but again filed an application on same day with a copy of  receipt depositing Tk. 50,000.00/- and prayed for cancellation of the auction purchase which was also after hearing rejected on 30.01.2012 thus, the petitioner preferred the instant revisional application without any legal and lawful basis and become in-fructuous.

24.         Mr. Alam has categorically pointed that in the facts and circumstances of the instant case the proper remedy would be to discharge the Rule with a direction to receive back the deposited money of the petitioner from the Corporation through the Court and further proceeding of the Court may be proceeded in accordance with law to complete the further procedure. He has further very candidly submitted that the opposite party No. 2 auction purchaser without any laches, negligence, or fault has been suffering since 13.01.2012 till now. But the petitioner after obtaining the present Rule kept the matter pending for long time. If after, depositing the money and addition of party of the auction purchaser hear the matter as early as possible in that case the auction purchaser would not have suffered so much. So, in the facts and circumstances he prayed for discharging the Rule.

25.         We have perused the Rule issuing order and the affidavits of compliance filed on behalf of the petitioner, the counter affidavits filed by the opposite party No.1 and the opposite party No. 2 auction purchaser.

26.         Considering the materials on record it appears that the Rule was issued on 12.02.2012 and in the rule issuing order there was a direction to deposit Tk. 4, 00,000.00/- within 01 (one) month and to deposite rest of the decreetal amount within 28 February 2013 by 11 equal instalment without hearing the opposite party.

27.         The core point of the instant Rule whether after conclusion of a Miscellaneous Case under Article – 27 of President Order No. 7 of 1973, in an execution proceeding after auction sale an application under section 151 of the Code is maintainable praying for installment and in rejecting the same whether the Executing Court committed an error of law ?

28.         To address the question we are of the view that it would be beneficial to quote the provision of Articles – 27 and 28 of the President Order No.7 of 1973 which runs as follows:-

27. (1) Where by reason of the breach of any agreement by the borrower the Corporation becomes entitled to require the immediate payment of the amount due by the borrower to the Corporation, any officer of the Corporation authorised generally or specially by the Board in this behalf may apply to the District Judge within the local limits of whose jurisdiction the borrower’s house is situated for any one or more of the following reliefs, namely:-

(a)    an order for the sale of any property or properties pledged, mortgaged, hypothecated or assigned to the Corporation as security for the sums due by the borrower.

(b)   for an injunction restraining the borrower or his surety from in any manner removing, transferring or disposing of any of the properties referred to in sub-clause (a);

(c)    for an ad-interim attachment attaching the properties referred to in sub-clause (a) above and such other properties of the borrower or his surety as in the opinion of the District Judge were sufficient to cover the claim of the Corporation against the borrower including costs and interest.

            (2) An application under clause (1) shall state the nature and extent of the liability of the borrower and his surety to the Corporation, the grounds on which it is made and such other particulars as may be prescribed.

            (3) The District Judge may if he thinks fit hear the applicant and where the reliefs mentioned in sub-clauses (b) and (c) of clause (1) are prayed for in the application shall pass ad-interim orders granting such reliefs as in the opinion of the District Judge are sufficient to safeguard the full claim of the Corporation against the borrower.

            (4) At the time of passing his orders under clause (3) the District Judge shall order notice of the application to issue to the borrower and his surety together with copies of the applications, the order passed by the District Judge under clause (3), and any evidence which may have been recorded at the time of the order under clause (3), calling upon the borrower and his surety to show cause on a date to be specified in the notice, why the interim orders passed should not be confirmed and the reliefs sought in the application be granted.

            (5) If no cause is shown on or before the date specified in the notice under clause (4), the District Judge shall dispose of the application.

            (6) If the borrower and his surety appear and show cause, the District Judge shall grant them and the Corporation reasonable opportunity to produce their evidence relating to the reliefs claimed in the application, and after considering such evidence and hearing the parties, the District Judge shall pass his orders disposing of the application.

            (7) When passing his order under clause (5) or clause (6), the District Judge shall –

(a)    record his finding as to the amount due by the borrower to the Corporation, and the interest payable thereon;

(b)   direct or refuse to direct the sale of the properties attached;

(c)    confirm, discharge or vary any ad-interim orders passed restraining the borrower and his surety or attaching their properties; and

(d)   pass any other incidental orders.

   (8) No order passed by the District Judge ordering the release of any property of the borrower or his surety from attachment shall be given effect to until after the expiry of 30 days from the date of that order except with the written consent of the Corporation, or where an appeal has been preferred to the High Court Division, under the orders of the High Court Division.

   (9) An order under this Article for the attachment of sale of property shall be carried into effect as far as may be in the manner provided in the Code of Civil Procedure, 1908, for the attachment or sale of property in execution of a decree as if the Corporation were the decree-holder.

   (10) Any party aggrieved by an order under clause (5) or clause (6) may within thirty days from the date of the order appeal to the High Court Division, and upon such appeal the High Court Division may after hearing the parties pass such orders as it thinks proper.

   28. The Corporation shall be deemed to be a Bank for the purposes of the Bankers Books Evidence Act, 1891.

29.         On a careful scrutiny of the above provisions of the President Order No. 7 of 1973 it is clearly divulged that any order passed by the learned District Judge under clause 5 and 6 of the order is appealable under clause -10 of the Order to the High Court Division but not revisable. However, on a bare reading the provisions of the clause – 9 of the Order it appears that for the attachment and sale of any property under execution the manner of execution would be concluded as per provision of the Code of Civil Procedure. 

30.         So, we have to examine what procedure has been followed in selling the property in auction sale. On perusal of the lower Court records it is apparent that although Miscellaneous Case was allowed ex-parte but the borrower after ex-parte order made a solenama with the Corporation to repay the due loan amount on certain condition which was accepted by the Court vide order dated 30.11.2005 instead of filing any appeal or an application to set aside the ex-parte order dated 17.06.2003. Thereafter, the borrower has failed to repay the loan amount as per stipulation of solenama. However, the Court up to 10.11.2009 allowed time on numerous applications of borrower in its discretion only to recover the due loan money and to facilate the petitioner to repay the outstanding, but the borrower could not repay the money. In such facts and circumstances the Court proceeded to sell the property through auction in accordance with law. 

31.         For ready reference and convenience of the discussion to decide the merit of the instant Rule we are of the view that the provision of section 115 of the Code as was before 2003 and after amendment in the year of 2003 may be reproduced herein below:

                        2Substituted by the Code of Civil Procedure (Second Amendment) (Act No. XXIX of 2003 for the provision which ran as follows:

                        The High Court Division may call for the record of any case which has been decided by any Court subordinate to the High Court Division and in which no appeal lies thereto, and if such subordinate Court appears to have committed any error of law resulting in error in the decision occasioning failure of justice, the High Court Division may make such order in the case as it thinks fit. 

            “115. – Revision – 2 [(1) The High Court Division may, on the application of any party aggrieved, call for the record of any suit or proceeding in which a decree or an order has been passed by a Court of District Judge or Additional District Judge, or a decree has been passed by a Court of Joint District Judge, Senior Assistant Judge or Assistant Judge, from which no appeal lies; and if such Court appears to have committed any error of law resulting in an error in such decree or order occasioning failure of justice, the High Court Division may, revise such decree or order and, make such order in the suit or proceeding, as it thinks fit.

            (2) The Court of District Judge may, on the application of any party aggrieved, call for the record of any suit or proceeding, in which an order has been passed by a Court of Joint District Judge, Senior Assistant Judge or Assistant Judge from which no appeal lies, ad if such Court appears to have committed any error of law resulting in an error in such order occasioning failure of justice, the Court of District Judge may, revise such order and, make such order as it thinks fit.

            (3) A Court of Additional District Judge shall have all the powers of the District Judge under sub-section (2) in respect of revision case which may be transferred to it by the District Judge.

            (4) An application to the High Court Division for revision of an order of the District Judge or, Additional District Judge, as the case may be, made under sub-section (2) or (3) shall lie, where the High Court Division grants leave for revision on an error if law of an important question of law resulting in erroneous decision occasioning failure of justice, and the High Court Division may make such order in the suit or proceeding as it thinks fit.

            (5) Notwithstanding the substitution of this section, many proceeding commenced and pending under section 115 prior to such substitution shall be disposed of in such manner as if section 115 has not been substituted.

32.         The provision has quoted herein above on perusal the same we are of the view that before amendment of the Code by Act XXIX of 2003 as a Higher Court the High Court Division can pass an order under section 115(1) of the Code in its discretion as a supervisory Court but after amendment of the Code in the year of 2003 the Court must act so far it relates to any order challenged before it in accordance with the provision as provided in section 115 (1) of the Code as a higher Court of revisional jurisdiction. It appears from the impugned order that the Rule was issued on 12.02.2012 but the auction purchaser deposited the whole auction money on 07.02.2012 in the Court of District Judge before the issuance of the instant Rule. In such situation, the opposite party No.1 Corporation in one side received the money from the borrower by the order of this Court; on the other hand the auction purchaser deposited the rest auction money by the order of the District Judge Court before passing the Rule issuing order. In view of the above discussion we are of the opinion that in execution proceeding there is no scope to apply the inherent jurisdiction of the Court in favour of the petitioner when the petitioner has once again failed to repay the loan money as per his on admission and thereafter she did not act fairly as per his own volition. More-so, we are of the view that the section 151 can be invoked only to secure the ends of justice and to prevent the abuse of the process of the Court, however, we find in the events of the present case, the petitioner once again by filing application under section 151 tried to prevent the proceeding started in accordance with law instead of securing the ends of justice. We are, therefore, of the opinion that in rejecting an application under section 151 of the Code the executing Court committed no error of law.

33.         It is pertinent to mention here that the petitioner obviously can file an application challenging the proclamation and auction sale of the suit property if any material illegality, irregularities or any violation of provision of law if has been committed by the Court in the proceeding of the execution regarding the proclamation and auction sale but instead of that the petitioner filed an application under section 151 of the Code for repay the outstanding loan due to her. We are, further of the opinion that in the proceeding of the execution the Executing Court cannot go beyond the original order of the Court nor can vary the same by invoking the inherent power of the Court as provide in section 151 of the Code in the name of ends of justice. 

34.         From the fateful events of the instant Rule it further appears to us that at the time of issuance of the Rule there was some direction upon the opposite party which has already quoted herein above of this judgment such direction was not well founded because in the same order, on one side the Court issued show cause notice against the opposite party to reply why the impugned order should not be set aside, on contra, before replying of show cause in the same order directed the petitioner to deposit the whole auction money by instalment which is self contradictory.

35.         We are of the considered view that if the Court issue show cause notice against the opposite party he must provides time to give his reply and get an opportunity of being heard, before getting reply and without hearing the opposite party should not pass such order which make the Rule otherwise absolute before hearing as in the instant Rule issuing order without hearing the opposite party directed the petitioner to deposit the whole loan amount within the certain period without considering the facts and circumstances of the instant case.

36.         We find support of our view to the case of Abdul Wahab-Vs- Ali Ahmed and another reported 44 DLR (AD) 55, to the case of Abu Ahmed Abdul Hafiz & others –Vs- M.A. Hoque Shirajee, 1983 BLD (AD) 193, Azizul Huq Chowdhury-Vs- Manzur Hossain and others BCR, 1984 (AD) 532, to the case of Sukumar Sen & ors. Vs- Guranga Bejoy Das and ors. 1989 BLD (AD)162.

37.         Such type of direction at the time of issuance of the Rule is totally nugatory for the dispensation fair and equitable justice.

38.         We are further of the view that for such type of direction by the Rule issuing bench, the hearing of the Rule became nugatory and in-fructuous like the present case in hand. Although we have already found that the Rule bears no merit.

39.         We here must mention the cunning activities of the petitioner as she has suppressed the material facts. The petitioner if at the time of filing the instant Rule did not suppress the facts of depositing of the auction money by the auction purchaser before issuing of Rule in that case the order of direction would not have been passed in a manner as it has been passed. Further it may be mentioned here that such type of awkward incident would not be happened if at the time of issuance of the Rule, direction would not be given to the petitioner to deposit the whole decretal loan money instead of stay the further proceeding of the case.

40.         From the foregoing narrations and authorities as quoted herein above we are of the considered view that to invoke the settled principle of law it is not merely of some importance rather, is of fundamental importance that justice should not only be done but should manifestly and undoubtly seems to have been done.

41.         In the facts and circumstances of the instant case we find no merit in the Rule.

42.         Therefore, the Rule is discharged.

43.         The opposite party No.1 is directed to return back the deposited instalment money to the petitioner as admitted it by filing counter affidavit. The petitioner is directed to withdraw his money from the office of the Corporation.

44.         The order of stay granted at the time of issuance of the Rule is hereby recalled and vacated.

45.         The Executing Court is hereby directed to conclude the executing proceeding in accordance with law.

46.         The office is directed to communicate the order to the Court of District Judge, Dhaka and send down the Lower Court’s record at once.

Ed.



Civil Revision No. 487 of 2012