Mrs. Sanjida Sarmin Vs. Kazi Zahid Hossain and others, (Md. Nuruzzaman, J.)

Case No: Civil Revision No. 1648 of 2015

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

Court: High Court Division,

Advocate: Mrs. Shahida Khatoon, Advocate with Mr. A. S. M. M. Kabir Khan, Advocate ,

Citation: 2019(1) LNJ

Case Year: 2018

Appellant: Mrs. Sanjida Sarmin

Respondent: Kazi Zahid Hossain and another

Subject: Artha Rin Adalat Ain

Delivery Date: 2019-11-27

 

HIGH COURT DIVISION

(CIVIL REVISIONAL JURISDICTION)

Md. Nuruzzaman, J

And

S.H. Md. Nurul Huda Jaigirdar, J

 

Judgment on

22.05.2018 and 23.05.2018

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}

}

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Mrs. Sanjida Sarmin

. . Petitioner

-Versus-

Kazi Zahid Hossain and another

. . . -Opposite party.

Artha Rin Adalat Ain (VIII of 2003)

Sections 27 and 33(5)

Application filed before the Judge, Artha Rin Adalat to set aside the certificate issued by Artha Rin Adalat cannot be decided by the learned District Judge on transfer because the learned District Judge has no original jurisdiction except appellate jurisdiction under Artha Rin Adalat Ain. Therefore, transfer of execution case No. 71 of 2002 to the Court of District Judge by the Judge, Artha Rin Adalat without disposing the application dated 06.8.2012 passed by the judgment debtor opposite party No. 1 cannot be said an order of legal prudence. Therefore, he cannot but to hold that application filed before the judge Artha Rin Adalat is superfluous and should be disposed of in accordance with law by the Judge Artha Rin Adalat and not by the learned District Judge.  . . . (22 and 23)

Artha Rin Adalat Ain (VIII of 2003)

Section 33(5)

Since, Artha Rin Jari No. 71 of 2002 has already disposed of vide order No. 33 dated 17.2.2008 with full satisfaction by the Executing Court, so, at the time of transferring the aforesaid matter to the Court of learned District Judge, Artho Rin Adalat was functus officio. Moreso, the learned District Judge on transfer of the execution case started in Artha Rin Adalat cannot pass the impugned order starting another Title Execution Case being case No. 20 of 2012.                                                  . . .(25)

Constitution of Bangladesh, 1972

Article 102

Artha Rin Adalat Ain (VIII of 2003)

Section 41

There being special provision for appeal in the Artha Rin Adalat Act, 1990 no application under Article 102 lies against the judgment and order of the said Adalat. It has been, thus, settled long back that the writ petition is not proper course for challenging the judgment of Artha Rin in view of provision for filing appeal being provided in the statute. It is abundantly clear that without existing the legal term as prescribed in the Artha Rin Adalat Ain 2003 no one can seek redress under article 102 of the Constitution.    . . . (30 and 31)

 

Artha Rin Adalat Ain (VIII of 2003)

Section 27

Transfer of case by the District Judge to the Artha Rin Adalat, Khulna was not in accordance with law, even than, the judgment debtor without challenging that transfer, only by filing an application before the Judge, Artha Rin Adalat pray for cancellation of the certificate cannot be said to be a proper application and thereafter the events occurred in the Court of Judge, Artha Rin Adalat and before the learned District Judge, Khulna also not in accordance with law.                        . . . (36)

Bangladesh House Building Finance Corporation Vs. Jahan Ara Akhtar and others, 49 DLR (AD) 80; 59 DLR (AD) 6; BADC Vs. Artha Rin Adalat; Zahirul Islam Vs. National Bank Limited and others, 46 DLR (AD) 191 and Gazi M Towfie Vs. Agrani Bank and others, 54 DLR (AD) 6 ref.

Mrs. Shahida Khatoon, Advocate with

Mr. A. S. M. M. Kabir Khan, Advocate

. . . For the petitioner

Mr. Pronay Kanti Roy, Advocate                

. . . For the O. P. No. 1

Mr. Md. Imam Hossain, Advocate

. . . For the O. P. 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 judgment and order dated 11.10.2012 passed by the District Judge, Khulna in Title Execution Case No. 20 of 2012 cancelling the Title Certificate dated 28.7.2004 issued by the Artha Rin Adalat, Khulna in favour of the opposite party No. 2 in Title Execution Case No. 71 of 2002 arising out of Miscellaneous Case No. 189 of 2000 and thereby setting aside whole proceeding of the said decree execution case pursuant to an application dated 6.8.2012 filed by the opposite party No. 1 should not be set aside and/or such other or further order or orders passed 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 present opposite party No. 2 as petitioner filed Miscellaneous Case No. 189 of 2000 before the learned District Judge, Khulna against the opposite party No. 1 for realization of House Building Loan of Taka. 9,57,532.19 as on 31.05.2000 including the interest accrued thereon as per provision of Article 27 of the Bangladesh House Building Finance Corporation Order No. 7 of 1973.

3.             In order to amicable settlement, on 19.08.2001, the opposite party Nos. 1 and 2 executed a Solenama stipulating some terms and conditions stating, inter alia, that the opposite party No. 1 took loan of Taka 3,32,000/- for erecting a building on the property in question and, as collateral security, he mortgaged the said property; that the opposite party No. 1 failed to give installment regularly and, as a result, the opposite party No. 2 filed the case; during pendency of the case, the opposite party No. 2 rescheduled the loan to be paid by 01.02.2014 starting from 01.07.2001 through monthly instalment of Taka 7,684.42/-; if the opposite party No. 1 fails to adjust the outstanding dues fully, the opposite party No. 2 is at liberty to sell the mortgaged property and the opposite party No.1 consented thereto; that the Case would be allowed as per terms and conditions of the Solenama and it would be an integral part of the Final Order.

4.             It is stated that on 30.08.2001, the Miscellaneous Case was allowed as per terms and conditions of the aforesaid Solenama (Exhibit-Ka) and it was treated as part of the Final Order.

5.             It has been narrated that in Title Execution Case, the opposite party No. 2 acquired title of the case property followed by a “Boynama” dated 14.08.2004. Thereafter, the opposite party No. 2 got possession thereof on 13.02.2008 pursuant to the order dated 07.01.2007. The opposite party No. 2 since accrued title and possession over the property in question and obtained Title Certificate therefore, the Title Execution Case was finally disposed of with full satisfaction pursuant to the order dated 17.02.2008 passed by the learned Judge, Artha Rin Adalat, Khulna.

6.             The opposite party No. 2 has obtained the case property through title execution case. It is also stated that the opposite party No. 2, in order to sell the case property invited tender from prospective buyers. In response, the petitioner herein agreed to purchase the same with a consideration of Taka 11,50,000/- and entered into an agreement on 13.02.2008. As per terms and conditions of the agreement, the petitioner has paid the whole consideration amount of money in favour of the opposite party No. 2 and took possession of the case property. After getting possession, the petitioner demolishing existing construction erected newly four storied building thereon and has been living there with her family members. Except, the house erected on the case property there is no other place of the petitioner to abode.

7.             After a long pause, on 06.08.2012 when the Title Execution Case NO. 71 of 2002 has finally been disposed of on 17.02.2008 with full satisfaction, the opposite party No. 1 filed an application for recalling the certificate provided as per provision of section 33(5) of the Artha Rin Adalat Ain, 2003 in favour of the opposite party No. 2. In that application, the opposite party No. 1 contended, inter alia, that the Miscellaneous Case No. 189 of 2000 for an amount of Taka 9,57,531.19/- was allowed on 30.08.2001 and the opposite party No. 2 obtained decree for sale on 05.09.2001; however, for the execution of the decree, Title Execution Case No. 71 of 2002 was filed before the learned District Judge, Khulna and it was sent to the learned Judge, Artha Rin Adalat, Khulna for disposal.  The opposite party No. 1 had no knowledge about the said Execution Case as no notice was served upon him and the Decree Holder did not inform him; subsequently, the opposite party No. 1 came to know that the corporation vide Circular Nos. 02/2008, 022/2009 and 001/2011 respectively dated 13.03.2008, 09.06.2009 and 08.05.2011 has given an opportunity of reschedule depositing 30% amount of the outstanding loan in order to ease the payment; that to avail the said opportunity, on several occasions, the opposite party No.1 reqeusted the opposite party No. 2 but, came to learn that  the opposite party No. 2 for unlawful gain trying to sell the property in question in favour of their desire person; that the opposite party No. 1 came to learn details of the case and procured relevant documents; that the house of the case property is the only place of abode of the opposite party No. 1; the opposite party No. 1 learnt about the case on 25.07.2012 and brought this application; it has further been contended that the Artha Rin Adalat’s has no jurisdiction to issue such certificate in favour of the opposite party No. 2 as the Hon’ble High Court Division in their judgments passed in Writ Petition No. 2809 of 2004 and 1478 of 2009 ousted the said jurisdiction; therefore, the impugned certificate has been issued without lawful authority and is of no legal effect hence, he prayed for cancelling the certificate of the opposite party No. 2.

8.             On 26.09.2012, the learned Judge, Artha Rin Adalat, Khulna heard the aforesaid application of the opposite party No. 1 and in order to dispose of the same, he sent it to the learned District Judge.

9.             Accordingly, the case record of Title Execution Case No. 71 of 2002 was transmitted to the Court of learned District Judge, Khulna from the Court of learned Judge, Artha Rin Adalat, Khulna on 01.10.2012 and it was registered as Title Execution Case No. 20 of 2012. After receiving the record, the learned District Judge fixed the next date on 11.10.2012 for hearing the application dated 06.08.2012.

10.         On 11.10.2012, the said application was heard. After hearing the same, the learned District Judge, Khulna was pleased to recall the order dated 28.07.2004 whereby the certificate in question was issued and thereby cancelled the whole proceeding of the Title Execution Case No. 71 of 2002 by virtue of the judgment and order passed in Writ Petition No. 2809 of 2004 and 1478 of 2009. Accordingly, the opposite party No. 2 was directed to take steps under Rule 54 of Order XXI of the Code of Civil Procedure.

11.         The opposite party No.2 had no knowledge about the order dated 11.10.2012 passed by the learned District Judge, Khulna as the opposite party No. 1 did not serve the copy of his application dated 06.08.2012 upon their conducting lawyer and thereby committed fraud upon the Court. Therefore, when the opposite party No. 2 came to learn about the said order on 21.04.2013 they filed an application under section 151 of the Code of Civil Procedure for recalling the said order and for re-hearing of the application dated 06.08.2012 contending, inter alia, that the application is not maintainable not only as per principle of past and close but the Executing Court has also become functus officio. The judgments and orders of the Writ Petitions are not applicable in the present case as the proceeding of the Title Execution Case No. 71 of 2002 has finally been disposed of on 17.02.2008 with full satisfaction i.e. before the judgments and orders of writ petitions. The case property has also been sold out in favour of third party before the judgment.

12.         The petitioner being aggrieved by the judgment and order dated 11.10.2012 passed by the learned District Judge, Khulna in title execution Case No. 20 of 2012 cancelling the title certificate dated 28.7.2004 issued by the Artha Rin Adalat, Khulna in favour of the opposite party No. 2 in Title Execution Case No. 71 of 2002 arising out of Miscellaneous Case No. 189 of 2000 and thereby setting aside whole proceeding of the Decree Execution Case No. 71 of 2002 in pursuant to application dated 6.8.20012 preferred the instant revision application before this Court and obtained the instant Rule with an order of stay.    

13.         Mr. A.S.M.M Kabir Khan with Mrs. Shahida Khatoon, Advocates appearing on behalf of the petitioner has submitted that the impugned judgment and order is misconceived one inasmuch as the learned District Judge failed to understand the purport and scope of the application dated 06.08.2012 filed by the opposite party No. 1 and, as such, committed error of law resulting in an error in the decision occasioning failure of justice and, as such, the same is liable to be set aside.

14.         He has submitted that the impugned judgment and order is bad in law inasmuch as the learned District Judge, Khulna has no authority to revive the Execution Proceeding which has already been finally disposed of on 17.02.2008 with full satisfaction. Therefore, starting of the proceeding of the Title Execution case No. 20 of 2012 by the learned District Judge, Khulna was without jurisdiction, lawful authority and is of no legal effect only to set aside or recall the previous order dated 28.04.2004 passed by the Judge, Artho Rin Adalat, Khulna in Title Execution Case No. 71 of 2002 and, as such, the impugned judgment and order is liable to be set aside.

15.         He has further submitted that the Miscellaneous Case No. 189 of 2000 was allowed on 30.08.2001 in terms of Solenama dated 19.08.2001 executed by and between the opposite party Nos. 1 and 2. For defaulting to repay the loan by the opposite party No.1 the proceeding of the Title Execution Case No. 71 of 2002 was started by dint of the judgment and decree dated 30.08.2001, therefore, filing the application on 26.08.2012 for recalling the order of certificate dated 28.07.2004 by the opposite party No.1 is barred by  law of limitation as well the principle of estoppel, waiver and acquiescence to raise any objection against the proceeding of the execution case which was not pending rather, disposed of with full satisfaction. Therefore, the Executing Court has become functus officio and thereby no legal and lawful authority to accept the application and to transfer the said application to the Court of District Judge. And thus, the petitioner judgment debtor has no locus standi to file the application dated 06.08.2012 for cancelling the certificate in question but the Court while passing the impugned judgment and order did not take into consideration the same legal and lawful aspect, thus, committed error of law resulting in an error in the impugned judgment and order dated 11.10.2012 occasioning failure of justice and, as such, the same is liable to be set aside.

16.         Mr. Pronay Kanti Roy, the learned Advocate appearing on behalf of the opposite party No. 1 has submitted that the learned District Judge passed the impugned order dated 11.10.2012 in title execution Case No. 12 of 2012 which does not suffer from any infirmity and, as such, no interference is calls for by this Court. Mr. Pronay has very candidly submitted that the proceedings of the Miscellaneous Case No. 189 of 2000 was started under article 27 of president Order No. 07 of 1973 in the Court of learned District Judge, Khulna. Thereafter, opposite party No. 1 by amicable settlement dated 19.8.2001 executed a solenama and by that solenama the loan was rescheduled as per condition of the solenama. Since, the opposite party No. 1 has failed to repay the loan rescheduled vide solenama. The instant Miscellaneous Case was allowed on 30.8.2001 by the order of the learned District Judge. The opposite party No. 2 House Building Finance Corporation started the Title Execution Case No. 71 of 2002 before the learned District Judge by dint of judgment and decree dated 30.8.2001. However, the learned District Judge without disposing the aforesaid Case transferred the said Execution Case to the Artha Rin Adalat, Khulna which was not in accordance with law. The opposite party No. 1 rightly filed the application before the Artha Rin Adalat, Khulna to set aside its certificate dated 28.7.2004 issued by the learned Judge, Artha Rin Adalat by its order dated 11.10.2012 in title execution Case No. 12 of 2012. Therefore, the learned District Judge, Khulna committed no error of law. In support of his submissions he relied to the precedent to the case of Bangladesh House Building Finance Corporation –Vs- Jahan Ara Akhtar and others reported in 49 DLR(AD)-80 and further elaborated his submission that in-respect of transferring of House Building Finance Corporation execution Case to the Court of Artha Rin Adala by the District Judge the Hon’ble Appellate Division has already decided as illegal in the above cited case. Therefore, the instant Rule has no legs to stand and, as such, the Rule is liable to be discharged.

17.         We have considered the submissions advanced by the learned Advocates of the respective parties. Perused the impugned judgment and order along with application filed by the judgment debtor on 06.8.2012 in Title Execution Case No. 71 of 2002 for setting aside the certificate issued by the Artho Rin Adalat, Khulna under section 33(5) of the Ain. We have also perused the order dated 26.9.2012 passed by the Judge, Artha Rin Adalat, Khulna in Artha Rin Jari 71 of 2002.

18.         In view of the facts and circumstances and legal proposition and decision cited by the learned Advocates of the respective parties following questions have to answer in the instant Rule which are as follows:

I.        Whether the learned District Judge, Khulna can transfer the Miscellaneous Case No. 189 of 2001 to the Court of Judge, Artha Rin Adalat filed under Article 27 of the Precedent Order No. 7 of 1973 for execution of the judgment and decree dated 30.8.2011.

II.     Whether the impugned judgment and order passed by the learned District Judge vide order No. 38 dated 11.10.2012 is sustainable in law in the facts and circumstances of the instant case.

III.  Whether the petitioner before us can get any relief as prayed for

19.         We are of the view that the answer of question No. I has already been decided by the Hon’ble Appellate Division to the Case of Bangladesh House Building Finance Corporation –Vs- Jahan Ara Akhtar and others reported in 49 DLR(AD)-80. In this regard the Hon’ble Appellate Division of the Supreme Court of Bangladesh has held the following view

         “ The view expressed by the High Court Division overlooks the provision of section 3 of the Act and does not comprehend section 5(1) with the proviso as  a whole. In view of the said provision, 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.   

         “As per as the present case is concerned the appellant already brought the proceedings under Article 27 of President’s Order No. 7 of 1973. These proceedings cannot be transferred to the Artha Rin Adalat which has jurisdiction to try a suit and not proceedings under Article 27. Notwithstanding the promulgation of the Act, the proceedings under Article 27 can continue and we understand that this is that the High Court Division has really intended to convey although at places an impression has been given that a financial institution has to follow the special provision or procedure as provided in the relevant law for realisation of loan and a suit under the Act for the said purpose will be without jurisdiction.  We are, however, inclined to think that the High Court Division expressed itself keeping in view the facts of the present case only and its observations are meant to govern the case in hand and not generally. The appellant’s  interpretation of section 5(1) read with the proviso is found to be unacceptable. ”

20.         In view of the above discussions of the Hon’ble Appellate Division we are of the view that the submissions advanced by the learned Advocate for the opposite party No. 1 bears merit.

21.         Now, we have to answer the question No. 2. On perusal of the order dated 26.9.2012 passed by the Judge, Artha Rin Adalat, Khulna in Artha Rin Jari No. 71 of 2002 it is divulged that said Artha Rin Jari No. 71 of 2002 has been started under Rule II of Order XXI of the Code of Civil Procedure in the Court of Joint District Judge, Artha Rin Adalat. It has been concluded by the Judge, Artha Rin Adalat vide Order No. 33 dated 17.2.2008. Thereafter opposite party No. 1 filed an application on 06.8.2012 for cancellation the certificate dated 28.7.2004 issued under section 33(5) of  Artha Rin Adalat Ain-2003. Learned Judge, Artha Rin Adalat, Khulna on receiving the application by its order dated 26.9.2012 transferred the Artha Rin Jari No. 71 of 2002 to the Court of District Judge, Khulna. From the record it is revealed that  the Jari Case No. 71 of 2002 the certificate issued under section 33(5) dated 28.7.2004 by the Judge, Artha Rin Adalat as per provision of Artha Rin Adalat Ain 2003. Therefore, transferring the Jari Case to the Court of learned District Judge for passing necessary order appears to us not in accordance with law.

22.         We are of the view that application filed before the Judge, Artha Rin Adalat to set aside the certificate issued by Artha Rin Adalat cannot be decided by the learned District Judge on transfer because the learned District Judge has no original jurisdiction except appellate jurisdiction under Artha Rin Adalat Ain. Therefore, transfer of execution case No. 71 of 2002 to the Court of District Judge by the Judge, Artha Rin Adalat without disposing the application dated 06.8.2012 passed by the judgment debtor opposite party No. 1 cannot be said an order of legal prudence.  

23.         Therefore, he cannot but to hold that application filed before the judge Artha Rin Adalat is superfluous and should be disposed of in accordance with law by the Judge Artha Rin Adalat and not by the learned District Judge.

24.         We have perused the Annexure “G” Order No. 37 dated 01.10.2012 passed by the District Judge, Khulna in title execution No. 20 of 2012 and the impugned order dated 11.10.2012. Upon combined reading of the orders dated 01.10.2012 and 11.10.2012 it appear that after transmission of the Artha Rin Jari Case No. 71 of 2002 to the Court of learned District Judge by order No. 26 dated 26.9.2012 the learned District Judge started another execution Case being Case No. 20 of 2012 and fixed the Execution Case on 06.8.2012 for hearing. On 06.8.2012 the learned District Judge passed the impugned order setting aside the certificate issued by Judge, Artha Rin Adalat in Artha Rin Jari Case No. 71 of 2002 dated 28.7.2004.

25.         On the above facts, circumstances and discussions made herein above we are of the considered view that since, Artha Rin Jari No. 71 of 2002 has already disposed of vide order No. 33 dated 17.2.2008 with full satisfaction by the Executing Court, so, at the time of transferring the aforesaid matter to the Court of learned District Judge, Artho Rin Adalat was  functus officfio. Moreso, the learned District Judge on transfer of the execution case started in Artha Rin Adalat cannot pass the impugned order starting another Title Execution Case being case No. 20 of 2012.

26.         Therefore, we are of the view that passing the impugned order by the learned District Judge committed an error of law.

27.         Now we have to answer the question No. III whether the petitioner can get any relief as prayed for.

28.         In view of the above discussions and precedence cited by the learned Advocate for the petitioner by way of supplementary affidavit referring to the Case of Sheikh Mujibur Rahman –Vs- Bangladesh and others it appears on perusal the precedence of Sheikh Mujibur Rahmans’ Case, that case, was decided on the basis of a decision reported in 59 DLR(AD)-6 to the Case of BADC-Vs-Artha Rin Adalat wherein it has been held by the Hon’ble Appellate Division which are as follows:

         “In this connection the decision in the case of Zahirul Islam vs National Bank Limited and others reported in 46 DLR (AD) 191 may be referred to. In the said case the petitioner moved the High Court Division under Article 102 of; the Constitution challenging the judgment and decree of Artha Rin Adalat on various grounds including the ground that the suit was barred by limitation and also the judgment was passed in excess of jurisdiction.  The Appellate Division held-

   “That the suit against the petitioner was barred by limitation and in excess of the Court’s jurisdiction are matters to be agitated in appeal and not under the writ jurisdiction.”

29.         In the aforesaid case the defendant’s plea was stronger than the plea taken in the instant case. Still it appears that the High Court Division as well as the Appellate Division rejected the plea.

30.         The decision in the case of Gazi M Towfie vs Agrani Bank and others reported in 54 DLR (AD) 6 further strengthens the view that there being special provision for appeal in the Artha Rin Adalat Act, 1990 no application under Article 102 lies against the judgment and order of the said Adalat. It has been, thus, settled long back that the writ petition is not proper course for challenging the judgment of Artha Rin in view of provision for filing appeal being provided in the statute.” 

31.         In view of the decision reported in 59 DLR(AD) 6 it is abundantly clear that without existing   the legal term as prescribed in the Artha Rin Adalat Ain 2003 no one can seek redress under article 102 of the Constitution.

32.         Therefore, we are of the view that the decision referred in the impugned order dated 11.10.2002 passed by learned District Judge vide judgment and order passed in Writ Petition No. 2809 of 2004 and Writ Petition No. 1487 of 2009 would not be effective and applicable in the case in hand.

33.         More-so, on a bare reading of the Bangladesh House Building Finance Corporations Case reported in 49 DLR (AD)-80 it is clearly depicted that the facts and circumstances of the referred case are not similar to the present case save and except up to transfer of the execution Case No. 71 of 2002 to the Court of Artha Rin Adalat Ain, Khulna.

34.         On perusal of the impugned judgment and order it appears that an application filed by the judgment debtor on 06.8.2012 without challenging the whole proceeding and transmission of the title Execution Case No. 71 of 2002 except praying for setting aside the certificate issued by the Artha Rin Adalat, Khulna on 28.7.2004. In the Case of Bangladesh House Building Finance Corporation reported in 49 DLR (AD)-80 and the facts of the present Case is quite distinguishable from the date of receiving the title execution Case No. 71 of 2002 by the Judge, Artha Rin, Khulna. In the referred Case of 49 DLR(AD)80 the petitioner challenged the transfer of the Case to the Court of Artha Rin Adalat by filing an application before the Artha Rin Adalat, Tangail. The learned Subordinate Judge rejected the same. The petitioner unsuccessfully filed an Miscellaneous Case in the Court of District Judge, Tangail praying and withdrawal of the Miscellaneous Cases from the Artha Rin Adalat to the Court of learned District Judge and to dispose of the same according to the provisions of President Order No. 07 of 1973. The learned District Judge after hearing the parties considering the relevant provision of law dismissed the Miscellaneous Case, hence, the petitioner preferred the Civil Revision before the High Court Division of the Supreme Court of Bangladesh. The High Court Division made the Rule absolute and thereby set aside both the judgment and orders of the Courts below against which leave was granted and after hearing the Hon’ble Appellate Division upheld the judgment of the High Court Division dismissing the appeal. However, we find the events of the present Case is not confined up to the transfer rather the Judge, Artha Rin Adalat concluded the execution with full satisfaction by its order dated 17.2.2008 and disposed of the Artha Rin execution No. 71 of 2002 with full satisfaction.

35.         From the facts and circumstances as has been narrated in the forgoing discussions we are of the view that the learned Judge, Artha Rin Adalat, Khulna and learned District Judge, Khulna acted further beyond their jurisdiction because after disposal of the execution Case the Judge Artha Rin Adalat, Khulna was not supposed to entertain the application filed by the judgment debtor loanee and transfer the same to the Court of District Judge and further District Judge passing the impugned order setting aside  the order passed by the Judge, Artha Rin Adalat in Execution Case again  committed an error. We are, therefore, in this regard of the considered view that as per decision of 49 DLR’s Case the judgment debtor loonee whether can filed an application on 6.08.12 for setting aside the only certificate issued by the Artha Rin Adalat on 28.7.2004 or the Judgment Debtor loanee must  challenge the transfer of the execution case as a whole in the Court of proper jurisdiction in accordance with the provision of law as declared by the Hon’ble Appellate Division in the Case of Bangladesh House Building Finance Corporation reported in 49 DLR(AD)-80.

36.         On considering whole facts and circumstances of the present Case we are further of the considered view that transfer of case by the District Judge to the Artha Rin Adalat, Khulna was not in accordance with law, even than, the judgment debtor without challenging that transfer, only by filing an application before the Judge, Artha Rin Adalat pray for cancellation of the certificate cannot be said to be a proper application and thereafter the events occurred in the Court of Judge, Artha Rin Adalat and before the learned District Judge, Khulna also not in accordance with law.

37.         We are further of the opinion that the judgment debtor loanee can seek the remedy before the competent Court in accordance with law.

38.         For the above discussions and precedent referred by the learned Advocates of both the parties we are of the considered view that the instant Rule bears merit.

39.         In the result, the Rule is made absolute.

40.         The impugned order dated 11.10.2012 is hereby set aside.

41.         The office is directed to communicate the judgment at once.

          Ed.



Civil Revision No. 1648 of 2015