Mrs. Saleha Begum Vs. Artha Rin Adalat and others, 2 LNJ (2013) 610

Case No: Writ petition No. 2809 of 2004

Judge: Hasan Foez Siddique,

Court: High Court Division,,

Advocate: Mr. Abdur Rahim Bhuiyan,Mr. Shaheed Alam,Mr. Sarder Abul Hossian,,

Citation: 2 LNJ (2013) 610

Case Year: 2013

Appellant: Mrs. Saleha Begum

Respondent: Artha Rin Adalat and others

Subject: Artha Rin, Writ Petition,

Delivery Date: 2010-03-01

HIGH COURT DIVISION
(SPECIAL ORIGINAL JURISDICTION)
 
Hasan Foez Siddique, J.
    And
Md. Moinul Islam Chowdhury, J

Judgment
01.03.2010
 
Mrs. Saleha Begum
. . . Petitioner
Versus
Artha Rin Adalat, Khulna and others.
. . . Respondents.
 

Constitution of Bangladesh, 1972
Article 102(2)
Bangladesh House Building Finance Corporation Order, 1973 (P.O. No. 7 of 1973)
Article 27
Artha Rin Adalat Ain (VIII of 2003)
Section 33(5)
In entertaining the application for execution of the order as has been passed by the learned District Judge in Miscellaneous Case filed under Article 27 of the P.O. No. 7 of 1973, the Artha Rin Adalat has acted illegally and unlawfully and hence the entire execution proceeding is declared to have been made without lawful authority and is of no legal effect. …(12)
 
Code of Civil Procedure (V of 1908)
Section 2(2)
Bangladesh House Building Finance Corporation Order, 1973 (P. O. No. 7 of 1973)
Article 27
As the order passed by the learned District Judge is not a decree within the meaning of Section 2(2) of the Code and the same is not executable before the Artha Rin Adalat as the action contemplated under Article 27 of P.O. No.7 of 1973 is outside the concept of “মামলা” as mentioned in the Artha Rin Adalat Ain. . . .(11)
 
Bangladesh House Building Finance Corporation Vs. Jahan Ara Akhtar and others, 49 DLR (AD)80 and Farkhundali Vs. VB Potdar, AIR 1962 Bombay (FB) 162 ref.
 
Mr. Sarder Abul Hossian, Advocate
. . .For the petitioner.
Mr. Shaheed Alam, Advocate
. . . For the Respondent no.2.
Mr. Abdur Rahman Bhuiyan, A.A.G.
. . . For the respondents.

Writ petition No. 2809 of 2004
 
JUDGMENT
Hasan Foez Siddique, J.
 
This Rule Nisi was issued calling upon the respondents to show cause as to why the Order dated 21.4.2004 passed by the Artha Rin Adalat, Khulna in Title Execution Case No. 83/1998 (Annexure-E) should not be declared to have been passed without any lawful authority and is of no legal effect.
 
The relevant facts for disposal of this Rule, in short, are that the respondent no.2, the House Building Finance Corporation filed Miscellaneous Case No. 37/1997 before the learned District Judge, Khulna for permission to sell the mortgaged property under Article 27 of P.O. 7/1973 for realisation of outstanding dues stating that the petitioner took loan of tk 7,60,000/- from the Corporation There was a condition that the same would be repaid through installments. The petitioner defaulted to pay the said amount. The outstanding dues stood Tk. 15,18,678.09. So the Corporation instituted the instant Miscellaneous Case. The present petitioner who was the opposite party in the said Miscellaneous Case did not appear in the said case. Consequently the case was allowed ex parte with a direction to repay the dues by 10.9.1997. There was an order that, in case of failure to pay the said amount of Tk. 5,18,678.09, the corporation would be entitled to realise the dues by selling the mortgaged property. Against the said  ex parle order the petitioner filed an application under Order 9, rule 13  of the Code of Civil Procedure which was ultimately rejected. Against  which the petitioner preferred a Miscellaneous Appeal   in  the  High  Court Division which was registered as F.M.A.T. No.636/1997. In the  meantime,   the   House   Building   Finance   Corporation   filed   Title  Execution Case No. 83/1998 before the learned Artha Rin Adalat,  Khulna to execute the order as passed by the learned District Judge,  Khulna  in Miscellaneous  Case No.37/1997.  The  present petitioner  appeared  in the said Execution Case and filed an application for  dismissal of the said application stating that the Artha Rin Adalat has  no jurisdiction to execute the order as passed by the learned District  Judge in Miscellaneous Case under Article 27 of P.O.7/1983. The   Executing Court by the impugned order dated 21.4.2004 rejected the  said application and issued certificate in favour of the. Corporation as per  provisions of Section 33(5) of the Artha Rin Adalat Ain, 2003. Challenging the said order dated 21.4.2004 as passed by the Artha Rin Adalat, Khulna in Artha Rin Execution Case No.83/1998 the petitioner  moved this Court and obtained the present Rule.
 
Mr. Sherdar Abul Hossain, the learned Advocate appearing for the petitioner, submits that the order passed by the learned District  Judge in Miscellaneous Case No.37/1997 is not executable before the 
Artha Rin Adalat in a regular Title Execution case in view of the fact that the adjudication order of the learned District Judge, Khulna is not a  decree and the said order has been passed in a proceeding of a  Miscellaneous Case not in a suit. The Adalat acted unlawfully in initiating the proceeding to execute the order as passed under the  provisions of Article 27 of P.O.7/1973. In support of his submission  Mr. Abul Hossain cited the decision in the case of Bangladesh House  Building Finance Corporation Vs. Jahan Ara Akhtar & others, reported in 49 DLR (AD) 80.
 
 Mr.   Saheed  Alam,  the   learned  Advocate  appearing   for  the  respondent no.2, submits that the instant Execution Case has been filed  in 1998 and different steps have been taken including the decision to  sell   the  mortgaged   property   in   auction.   But  the judgment-debtor  petitioner did not raise any objection at any stage and allowed the  Executing Court to proceed with the  instant case.  At the time of considering the prayer of the Corporation to issue certificate in favour  of the Corporation the instant application has been filed which is not  at all tenable in law.
 
Heard the learned  Advocates of both the sides, perused the writ petition and other materials on record.
 
It appears that, on 5.2.1997, the respondent no.2, the House Building  Finance  Corporation   filed  Miscellaneous  Case  No.37/1997  before the learned District Judge, Khulna under the provisions of  Article 27 of P.0.7/1973. The said Case was allowed ex parte. The  learned District Judge directed the judgment-debtor petitioner to repay  the  outstanding  dues  of Tk. 15,18,678.09  within   10.9.1997  with  a  default  order  that  in   case  of failure  to   pay   the  said   amount  the  Corporation would  be  entitled to  sell  the  mortgaged  property  for  realisation of the dues. Thereafter, the Corporation instituted Title  Execution Case No.83/1998 before the Artha Rin Aaalat, Khulna for  executing the order as passed by the learned District Judge, Khulna and  at one stage the Corporation filed an application for getting certificate  under the provisions of Section 33(5) of the Artha Rin Adalat Ain,  2003. On the other hand, the judgment-debtor petitioner filed an  application for dismissal of the Execution Case stating .that the order as  passed by the learned District Judge, Khulna in Miscellaneous Case  under Article 27 of P.0.7 of 1973 is not executable before the Artha Rin  Adalat and the Adalat acted illegally in entertaining such execution  case. The  Adalat  by  the  impugned  Order No.40  dated  21.4.2004 Rejected the said application holding, ’’নথি পর্যালোচনায় দেখা যায় অত্র জারী মোকদ্দমাটি ইং ২৮/১০/৯৮ তারিখে দাখিল করা হইয়াছে। তৎপর বহুবছর অতিক্রান্ত হইয়াছে। ২০০৩ সনের অর্থ ঋণ আদালত আইনের বিধান মোতাবেক অত্র জারী মামলা নিষ্পত্তির কার্যক্রম প্রায় শেষ প্রান্তে উপনীত হইয়াছে। দাইকপক্ষ ইতিপূর্বে আদালতের এখতিয়ার সম্পর্কে কোন প্রশ্ন উত্থাপন না করিয়া মামলায় নিষ্পত্তির এহেনো শেষ পর্যায়ে রুপ দরখাস্ত আনয়ন করা অত্র জারী মোকদ্দমার নিষ্পত্তিতে অযাচিত ও অনভিপ্রেত বিলম্ব ঘটাইবার নামান্তর মাত্র। কেননা ২০০৩ সনের অর্থ ঋণ আদালত আইনের আর্থিক প্রতিষ্ঠানের সংখ্যায় ডিক্রী দার প্রতিষ্ঠান আর্থিক প্রতিষ্ঠান বলা নিষ্প্রয়োজন এবং ২/৪ ধারার বিধানের আলোকে বাদী ডিক্রী দার প্রতিষ্ঠান একটি আর্থিক প্রতিষ্ঠান হইতেছে।’’

The only question is whether the order as passed by the learned District Judge in a proceeding under Article 27 of P.O. 7/1 973 is executable before the Artha Rin Adalat or not.
 
In the case as reported in 49 DLR (AD) 80, their Lordships of the Appellate Division have observed:

"Now it may be considered whether an application to the District Judge under article 27 can be said to be of the same category of a 'suit' or is a special provision made for realisation of loan. A Full Bench of the Bombay High Court in Farkhtmdali vs. VB Potdar AIR 1962 Bombay 162 observed that the word 'suit' is a term of art and ordinarily means a proceeding instituted in the civil Court by presentation of a plaint. It observed further that a proceeding under Section 54 of the Co-operative Societies Act was not a suit. We find ourselves in agreement with the statement of law as above and do not think that there will be two opinions on the point. Applying the said test there cannot be any difficulty in holding that an application under article 27 cannot be equated with a suit, for, in an application under that article none of the requirements as in a suit is attracted. No plaint, no court fee, no limitations, no written statement, no other necessary steps, no decree, nothing, the financial institution will get the relief or reliefs in a summary manner which is not available in the form of a suit. It cannot, therefore, but be said that article 27 is a special provision or procedure for realisation of loan which comes squarely within the proviso to section 5(1) of the Act. And it is well settled that a proviso excepts out of a previous enacting part of a statute something which but for the proviso would have been within the enacting part. The action contemplated under article 27 is, therefore, outside the concept of gvgjv which we have found to correspond with suit as provided in the main part of section 5(1) of the Act."
 
Their Lordships of the Appellate Division further held, "In view of the said provisions, the position is that a financial institution may institute a suit in connection with realisation of loan in the Artha Rin Adalat under the Act and by reason of the proviso to section 5(1) the special provision or procedure for realisation of loan provided in the law by which the financial institution is established will not be affected. The option is with the financial institution either to bring a suit under section 5(1) of the Act or take recourse to the special procedure provided in the relevant law."
 
In the cited case it appears that a proceeding as initiated before the learned   District  Judge under the provision of article 27 of P.O. 7/1973 was transferred to the Artha Rin Adalat and their Lordships observed that the Artha Rin Adalat which has jurisdiction to try a suit and not proceedings under article 27 of the Act.
 
In the instant case the order has been passed by the learned District Judge in Miscellaneous Case No.37/1997 as filed under article 27 of P.0.7/1973 which was allowed. Their Lordships of the Appellate Division has observed above that in the said proceeding no plaint is required to be filed, no court fee, no limitation, no written statement, no other necessary steps, no decree, nothing, the financial institution will get the relief or reliefs. That is the order as passed by the learned District Judge in the said Miscellaneous Case is not a decree within the meaning of Section 2(2) of the Code of Civil Procedure. Even the said proceeding is not a suit. We are of the view that the order as passed by the learned District Judge is not a decree and the same is not executable before the Artha Rin Adalat as the action contemplated under article 27 is, therefore, outside the concept of “gvgjv” as mentioned in the Artha Rin Adalat Ain. In the instant case Bangladesh House Building Finance Corporation took recourse of the special procedure as provided in P.0.7/1973. So it has no option to execute the order taking resort or the provisions of the Artha Rin Adalat Ain, 2003. The Artha Rin Adalat has acted illegally in entertaining the instant application for execution of the order as passed by the learned District Judge in-Miscellaneous Case. The proceeding as initiated before the Artha Rin Adalat in order to  execute the order as passed  by the learned  District Judge in Miscellaneous Case No. 37/1997 is wholly unlawful. So the entire execution proceeding is liable to be declared to have been made without lawful authority and is of no legal effect. 
 
Accordingly we find substance in the Rule. 
 
In the result, the Rule is made absolute without any order as to costs. The impugned Order No.40 dated 21.4.2004 as passed by in Title Execution Case No. 83/1998 as pending before the Artha Rin Adalat, Khulna and the entire proceeding of the Execution Case is hereby declared to have been made without lawful authority and is of no legal effect.
 
The Artha Rin Adalat, Khulna is directed to transmit the case records to the Court of the learned District Judge, Khulna and the learned District Judge, Khulna is directed to proceed with the matter in accordance with law.
 
Communicate this judgment at once.
 
Ed.