One Bank Ltd. Vs. Chaya Developer (Pvt.) Ltd. & another, 4 LNJ AD (2015) 292

Case No: Civil Appeal No. 175-176 of 2011

Judge: Md. Muzammel Hossain,

Court: Appellate Division ,,

Advocate: Mahmudul Islam,,

Citation: 4 LNJ AD (2015) 292

Case Year: 2015

Appellant: One Bank Ltd.

Respondent: Chaya Developer (Pvt.) Ltd. & another

Subject: Artha Rin,

Delivery Date: 2015-10-23


APPELLATE DIVISION
(CIVIL)
 
Md. Muzammel Hossain, CJ.
Surendra Kumar Sinha, J
Md. Abdul Wahhab Miah, J
Hasan Foez Siddique, J
AHM Shamsuddin Chowdhury, J.
 

Judgment on
23.10.2015
  One Bank Ltd.
... Appellant
(In C.a. No. 175 of 2011)
Versus
Chaya Developer (Pvt.) Ltd. and others
. . . Respondents
And
Chaya Developer (Pvt) Ltd. and others
. . . Appellant
(In C. A. No. 176 of 2011)
Versus
Government of People’s Republic of Bangladesh and others.
. . . Respondents
 

Artha Rin Adalat Ain (VIII of 2003)
Section 4(5)(7)
Regarding the appointment of Judges of the Artha Rin Adalat, Section 4(5) of the Ain envisages that the Government shall in consultation with the Supreme Court, appoint Judges of the Artha Rin Adalats from amongst the Joint District Judges and the Joint District Judges appointed in the aforesaid manner shall not be able to adjudicate any other civil or criminal cases except the Artha Rin Suit. Section 4(7) of the Ain provides that if a Judge of the Artha Rin Adalat has temporarily been unable to perform his duty owing to leave, illness or any other reason then the District Judge may appoint a Joint District Judge under his jurisdiction and control to perform the functions and duties of a Judge of Artha Rin Adalat for the time being on full time basis or in addition to his own duties. . . . (12)

Artha Rin Adatal Ain (VIII of 2003)
Sections 6(5) and 26
Code of Civil Procedure (V of 1908)
Order I, Rule 10
Section 26 provides that as regards execution of decree passed under this Ain the provisions of the Code of Civil Procedure, 1908 are applicable if these are not in conflict with the provisions of the Ain. In the instant case, the provisions of Order 1 Rule 10 of the Code are not in conflict with those of the Ain, 2003 inasmuch as the former is very much  in conformity with the provisions of section 6(5) of the Ain and as such the former is applicable in the instant suit. . . . (12)

Artha Rin Adatal Ain (VIII of 2003)
Section 4 and 4(7)
From the scheme of the Artha Rin Adalat Ain, 2003 and the provisions of Section 4 of the Ain it is clear that the only persons legally competent to be appointed to act as Judges of the Artha Rin Adalat are Joint District Judges.   In view of Section 4 (7) of the Ain even those who are performing the functions of Judges–in-Charge of the Artha Rin Adalat shall have to be appointed from amongst the Joint District Judges. Therefore, the High Court Division rightly set aside those orders which were passed by the learned Judge-in-Charge who was holding the rank of Additional District Judge but part of the impugned Order No. 1 dated 23.01.2008 relating to the registration of the suit was kept valid as that was an admini-strative order. The learned Additional District Judge has no jurisdiction to pass any judicial order in Artha Rin Suit in view of the provisions of Section 4 of the Artha Rin Adalat Ain, 2003. . . . (13)

Artha Rin Adatal Ain (VIII of 2003)
Section 4(4)(7)
The learned Additional District Judge cannot be a Judge of Artha Rin Adalat as per provisions of Sub-Sections (4) and (7) of Section 4 of the said Ain, 2003. In view of the above observations and findings we are of the view that the impugned order of attachment before judgment passed by the learned Additional District Judge acting as a Judge of Artha Rin Adalat without having any power and jurisdiction being Coram non judice has been passed without lawful authority and  jurisdiction. . . . (13)

Code of Civil Procedure (V of 1908)
Order I, Rule 10
Who is a necessary party and a proper party and distinction between them—The established principle of law is that either a necessary party or a proper party may be added in the suit. A necessary party is one in whose absence no effective decree can be passed. Whereas a proper party is one whose presence is not necessary for passing an effective decree. The presence of proper party facilities more effectual and complete adjudication of all the disputes and avoid multiplicity of proceeding between the parties. A proper party is one who is legally interested in the suit. A legally interested party is one whose rights has been adversely affected by any order of a court.  It appears that order No.1 dated 23.01.2008 and order No. 13 dated 6.4.2008 of the Artha Rin Suit were passed for attachment of the property in question before judgment  and order No. 33 dated 11-09-2008 and  order No. 36 dated 18-09-2009 were passed restraining the appellant in Civil Appeal No. 176 of 2012 by an order of temporary injunction from carrying on with any construction work on the property in question which have adversely affected the rights of the appellant as a developer. In that view of the  matters the appellant- developer being a proper party is entitled to be added as a party to the said Suit and as such Order No. 49 dated 19.1.2009 is illegal and without lawful authority for  not allowing it to be added as a party in the suit. . . . (14)

Code of Civil Procedure (V of 1908)
Order I, Rule 10
Artha Rin Adatal Ain (VIII of 2003)
Section 6(5)
The High Court Division while making the Rule absolute upon setting aside the order No., 49 dated 19.05.2009 committed illegality by not allowing the appellant-developer to be added as a party in the suit under Order 1 Rule 10 of the Code of Civil Procedure inasmuch as Section 6(5) of the Ain which provides guidelines as to how the defendants can be impleaded in the proceedings of Artha Rin Suit is in conformity with the provisions of the aforesaid Order. In that view of the matter the appellant-developer is entitled to be added as a party in the suit in the category of defendant. Therefore we find merit in Civil Appeal No. 176 of 2011.... (14)

Code of Civil Procedure (V of 1908)
Order I, Rule 10
Artha Rin Adatal Ain (VIII of 2003)
Section 6(5)
An adversely affected person can be added as defendant in Artha Rin suit--It appears that the appellant-developer of the Civil Appeal No. 176 of 2011 has been adversely affected by the judgment and order dated 19-01-2011 passed by the High Court Division making the rule absolute insofar as it relates to setting aside of the Order No. 49 dated 19-01-2009 passed by the respondent No. 2 in Artha Rin Suit No. 7 of 2008 without passing any necessary order for making it as an added party in the suit in the category of defendant.  There is no provision in the Artha  Rin Adalat Ain, 2003 which debars a person adversely affected by the decision in an Artha Rin Suit from being added as a party to the suit. . . . (15)
 
For the Appellant (In C.a. No. 175 of 2011): Mr. Kamal-Ul- Alam, Senior Advocate, instructed by Mr. Shamul Alam, Advocate-on-Record.
For the Appellant (In C.a. No. 176 of 2011): Mr. Mahmudul Islam, Senior Advocate, instructed by Ms.Sufia Ahamed, Advocate-on-Record.
For the Respondent (In C.a. No. 175 of 2011): Mr. Mahmudul Islam, Senior Advocate, instructed by Ms.Sufia Ahamed, Advocate-on-Record.
For the Respondent (In C.a. No. 176 of 2011): Mr. Kamal-Ul- Alam, Senior Advocate, instructed by Mr. Shamul Alam, Advocate-on-Record.
 
Civil Appeal No. 175—176 of 2011
 
JUDGMENT
Md. Muzammel Hossain, CJ:

These appeals by leave are directed against the judgment and order dated 19.01.11 passed by a Division Bench of the High Court Division in Writ Petition no. 1376 of 2009 making the Rule absolute and thereby setting aside Part of Order No. 1  dated 23-01-2008 except the registration  of the Title Suit No. 7 of 2008, Order Nos. 13 dated 06-04-2008 and 49 dated 19-01-2009  passed by the Artha Rin Adalat, 1st Court, Chittagong in Artha  Rin Suit No. 7 of 2008.

The facts for disposal of these appeals, in short, are that the respondent No. 1 in Civil Appeal No. 175 of 2011 and the appellant in Civil Appeal No. 176 of 2011 as petitioner, filed Writ Petition No. 1376 of 2009 before the High Court Division challenging the above mentioned three orders passed by the Artha Rin Adalat in Artha Rin Suit No. 7 of 2008 on the ground that they were passed without lawful authority and jurisdiction. The writ petitioner being a private limited company incorporated under the Companies Act, 1994 deals with the business of property development. The Writ petitioner company proposed to develop the land at plot No. 8, Road No. 104, Gulshan Model Town, Dhaka by constructing multistoried building thereon. The land belonged to Writ respondent No. 4, Mohammad Yahya, who got the same from RAJUK in 1996 vide a deed of lease agreement dated 22.07.1996 for 99 years. The Writ respondent No. 4 informed the writ petitioner that the title deed of his land had been deposited with the Trust Bank, Gulshan Corporate Branch, Dhaka as equitable mortgage to secure credit facilities. By executing tripartite agreement between the Writ Petitioner, Writ respondent No. 4, Mohammad Yahya and the Trust Bank, the sale price of the land had been settled. As per such agreement the writ petitioner made payment of Tk. 6,00,000,00 (six crores) to the Trust Bank to make the land owner free from liability. The Writ petitioner also paid Tk. 14,00,000,00 (fourteen lacs) to the land owner. On receipt of the said amount the Trust Bank handed over the title deed of the land to the Writ petitioner. Subsequently, the land owner executed a General power of Attorney on 25.09.2007 in favour of the Writ petitioner in order to facilitate  the construction work of multistoried building over the said land and also for exercising  his right relating to that land. The Writ respondent No.3 appellant, One Bank Limited, on 23.01.2008, as plaintiff, filed Artha Rin Suit No. 7 of 2008 before the Artha Rin Adalat, 1st Court, Chittagong against the Writ  respondent No. 4, Mohammad Yahya, claiming Tk. 9,00,000.00 (nine crores). On the same date the plaintiff- One Bank Limited, filed an application under Order, XXXVIII Rule 5 of the Code of Civil Procedure for attachment before Judgment. On that application show cause notices were issued upon the defendants, and pending hearing, by an ad-interim order passed on the same date (order No. 1 dated 23.01.2008) the said land had been attached. In January, 2009 the Writ petitioner filed an application under Order 1, Rule 10 of the Code of Civil Procedure for addition of party in the Artha Rin Suit which was rejected by the Court vide Order No. 49 dated 19.01.2009 on the ground that the petitioner had no locus standi under section 6(5) of the Artha Rin Adalat Ain, 2003.  The Writ petitioner Chaya Developer (Pvt.) Limited challenging the authority of the concerned Judge (respondent No.2) in passing the said orders filed the Writ petition and obtained the Rule. To oppose the Rule, the Writ respondent No. 3, One Bank Limited, filed  Affidavit-In-Opposition stating, inter-alia, that the petitioner has got no locus standi to file the Writ petition since the petitioner is no more the Attorney of the land owner as well as not yet acquired any title over the land.
 
A Division Bench of the High Court Division after hearing both the parties by the Judgment and Order dated 19.0.2011 made the Rule absolute upon  setting aside the part of Order No. 1 dated  23.01.2008 except the registration of the suit, order No. 13 dated 06.04.2008 and Order No. 49 dated 19.01.2009 passed by the Artha Rin Adalat, 1st Court, Chittagong in Artha Rin Suit No. 7 of 2008 and further holding the view that part of Order No. 1 dated 23.01.2008 relating  to registration of the suit can remain valid as that was an administrative order.
 
Being aggrieved by the impugned Judgment and Order passed by the High Court Division, the Writ respondent No. 3 preferred Civil Appeal No. 175 of 2011 and Writ petitioner preferred Civil Appeal No. 176 of 2011 by leave before this  Division.
 
In respect of Civil Appeal No. 175 of 2011 leave was granted to consider the following grounds:-
  1. Whether the High Court Division was in error in nullifying the proceeding conducted by the Additional District Judge, inasmuch as the law does not say that trial by an Additional District Judge who was entrusted with the trial of Artha Rin Suit would be invalid because of this lacuna;
  2. Whether the writ petition itself suffers from incurable defect, inasmuch as the writ petitioner impugned order Nos. 1, 13 and 49 passed by the Artha Rin Adalat, although at no point of time he was a party to the suit. After his application to be added as a party was rejected by order No. 49 he filed the writ petition and took the liberty of impugning all three orders, although the first two orders impugned were passed before the writ petitioner came into the scene; and whether the High Court Division erred in entertaining the writ petition inasmuch as the writ petitioner had no locus standi to file the same;
  3. Whether the High Court Division erred in setting aside Order No. 49 dated 19-01-2009 passed by the Joint District Judge, Artha Rin Adalat, as suffering from lack of jurisdiction;
  4. Whether the High Court Division acted illegally in setting aside the orders passed by the Artha Rin Adalat,  inasmuch as any bank, in order to recover a loan, would file an Artha Rin Suit, in the Artha Rin Adalat and the suit filed by a bank in the Artha Rin Adalat for recovery of loan does not impute any knowledge upon the bank as to whether the Artha Rin Adalat suffers from lack of jurisdiction.”
 In respect of Civil Appeal No. 176 of 2011 leave was granted to consider the following grounds:-
  1. Whether the High Court Division committed illegality by not allowing the petitioner to be added as defendant under Order 1 Rule 10 of the Code of Civil Procedure, the provision not being in conflict with provisions of Section 6(5) of the Artha Rin Adalat Ain, 2003;
  2. Whether the High Court Division and the Artha Rin Adalat committed illegality by not considering the  provision of section 6(5) of the Ain which is an enabling provision providing guidelines as to how the defendants can be impleaded in the proceedings of an Artha Rin Suit and there is no limitation regarding who may or may not be made parties in the Artha Rin proceedings; and whether the order of the High Court Division declaring order No. 49 dated 19-01-2009 to be illegal without directing the petitioner to be added in the category of defendant in the suit should be interfered by this Division;
  3. Whether the petitioner is entitled to be added as party in the suit in the  category of defendant since it acquired right, title, interest and possession by constructing a multi-storied building on the disputed land by operation of law by way of redemption of equitable mortgage in respect of debt of the respondent No. 4  with Trust Bank Limited by making payment to release the land owner from the bank’s liability long before filing of the suit and the order of attachment before judgment passed on 23-01-2008.
Mr. Kamal-Ul- Alam, the learned Senior Advocate, appearing for the appellant in the Civil Appeal No. 175 of 2011 submits that the High Court Division erred in law in nullifying the proceedings conducted by the learned Additional District Judge, inasmuch as the law does not say that trial by the learned Additional District Judge who was entrusted with the trial of Artha Rin Suit would be invalid because of this lacuna. Moreover, one of three impugned orders, namely, the Order No. 49 dated 19.o1.2009 was passed by the learned Joint District Judge acting as Judge, Artha Rin Adalat and therefore, his order does not suffer from lack of jurisdiction, and yet the High Court Division declared his order as corum non-judice. He further submits that the Writ petitioner had no locus standi to file the Writ petition challenging Order Nos. 1 and 13 when he was not a party to the suit. Finally, he submits that a bank’s only option for recovery of loan money is to move the Artha Rin Adalat, as provided by Artha Rin Adalat Ain, 2003 but a bank ought not to be expected to be aware of whether an Artha Rin Adalat suffers from lack of jurisdiction and therefore, a bank should not be made to suffer because of any alleged lack of jurisdiction of the concerned Judge.

Mr. Mahmudul Islam, the learned Senior Advocate, appearing for the respondent in Civil Appeal No. 175 of 2011 submit that under the Artha Rin Adalat Ain, 2003 the District Judge has neither any authority to appoint the Judge for Artha Rin Adalat nor any Judge either below or above the rank of Joint District Judge can ever be entitled to be appointed as a Judge of the said Court and that it is only the Government in consultation with the Supreme Court can appoint the Judge for the said Court from those Judges belonging to the rank of Joint District Judge. Mr. Islam contends that in absence of any Judge in the Artha Rin Adalat the District Judge may appoint a substitute Judge only from the rank of Joint District Judge to act as the presiding Judge in the said Adalat and that in the instant case the learned District Judge of Chittagong knew his limitation to this effect under law and thereby he appointed the said erstwhile Additional District Judge for the administrative work only of the said court and certainly not for performing any judicial function thereon, but in excess of that jurisdiction the said Judge entertained the suit and performed several judicial functions thereon including passing the Order Nos. 1-13 (23.01.2008-6.04.2008) and that subsequently though the matter was tried by the competent Judge of competent Court but as the matter suffers lack of jurisdiction (corum-non judice) since its inception hence the later proceedings are also nonest in law. Then he submits that the writ petitioner company has obtained the land for development and transfer in due course and thereafter, the same was transferred in the name of the Chairperson of the Company vide registered Sale Deed No. 8401 dated 27.10.2008 and the same was duly mutated in her name and the company has invested huge amount of money to construct a multi-storied building thereon and that the land was neither given mortgage nor committed to give mortgage against any loan as demanded by the bank. He finally submits that the impugned order of attachment before judgment passed by the learned Additional District Judge being Judge-In-Charge of the Artha Rin Adalat is illegal and without lawful authority and the appellant’s submissions in respect of the said attachment order before judgment is incorrect and misconceived and as such the appeal is liable to be dismissed.

Mr. Mahmudul Islam, the learned Senior Advocate, appearing for the appellant in Civil Appeal No. 176 of 2011 submits that the High Court Division committed illegality by not allowing the Writ petitioner to be added as a party in the Artha Rin Suit No. 7 of 2008 under Order No. 1 Rule 10 of the Code of Civil Procedure  which is not in conflict with the  provisions of Section 6(5) of Artha Rin Adalat Ain, 2003 inasmuch as Section 6(1) of the said Ain  provides that the provisions of the Code of Civil Procedure, 1908  is made applicable to the Artha Rin proceedings if it is not in conflict with the provisions of the said Ain.   He then submits that the High Court Division  and the Artha Rin Adalat committed illegality without considering the provisions of Section 6(5) of the Ain which is an enabling provision providing guidelines as to how the defendants can be impleaded in the proceedings of an Artha Rin Suit and as such the Order No. 49 dated 19.01.2009  which was declared illegal by the High Court Division without passing any order as to the addition of party of the petitioner in the category of defendant in the said suit should be interfered with by this Division . He further submits that the principle of law is that either a necessary or a proper party may be added in a suit and that a proper party is one who is legally interested in the suit. He finally submits that the Order No. 1 dated 23.02.2008 and Order No. 13 dated 06.04.2008 of the Artha Rin Suit No. 7 of 2008 for attachment of the property of the appellant and the Order No. 33 dated 11.09.2008 read with Order No. 36 dated 18.09.2009 restraining the appellant from carrying on with any construction work have adversely affected  the rights of the appellant as a developer and in that view of the matter the Order No. 49 dated 19.01.2009 is illegal and without lawful authority and the appellant is entitled to be added as a proper party to the suit.

Mr. Kamal-Ul-Alam, the learned Senior Advocate, appearing for the respondent No. 3 in Civil Appeal No. 176 of 2011 submits that there is no illegality in the impugned judgment and order dated 19.01.2011 passed by the High Court Division and as such no interference is called for by this court. He then submits that the Artha Rin Adalat Ain is a special law which takes priority over ordinary law, and section 6(5) of the Artha Rin Adalat Ain clearly lays down that only three kinds of persons may be the defendants in an Artha Rin Suit, namely, principal debtor, third party mortgagor and third party guarantor but the appellant, not belonging to any of these three categories, cannot be added as a defendant. He finally submits that Order 1 Rule 10(2) of the Code of Civil Procedure lays down the general rule when a person may be added as a party; but for the purpose of recovery of loan liabilities by the financial institutions Artha Rin Adalat Ain, 2003 was enacted which is a special law and which makes special provisions regarding parties in an Artha Rin suit: section 6(5) is unambiguous in its description of parties, and hence section 6(5) will prevail over Order 1 Rule 10 of the Code of Civil procedure which has no manner of application in an Artha Rin Suit and as such the appeal is liable to be dismissed.

We have heard the learned Senior Advocates for both the parties and perused the impugned judgment and order of the High court Division, concise statements submitted on behalf of all the parties and also other materials available on record.

It appears that while deciding the case the High Court Division found that the impugned orders were passed by the learned Additional District Judge, Chittagong and by a portion of the Order No. 1 the suit was registered as an Artha Rin Suit and by another portion of the said order (an ad-interim order) the land in question was attached till hearing of the matter by the learned Additional District Judge who presided over the Sessions of the Artha Rin Adalat. The portion of the said order attaching the land was passed as the Judge-In-Charge of the Artha Rin Adalat which is not an administrative order rather it is a judicial order. Such judicial order cannot be passed by a Judge without having any lawful authority. The Artha Rin Adalat Ain, 2003 is a special law providing for special measures to realize loans given by financial institutions. The preamble of the Artha Rin Adalat Ain, 2003 declares that the Ain, 2003 has been enacted with a view to further consolidate and amend the existing law (Artha Rin Adalat Ain, 1990) for speedy recovery of loan of the financial institutions.  Section 4 of the Artha Rin Adalat Ain, 2003 provides for the establishment of Artha Rin Adalats.  Therefore, it is pertinent to discuss the relevant provisions of Section 4. Under section 4(3) of the Ain, where no Artha Rin Adalat has been established as such any suit for the recovery of dues owed to financial institutions has to be filed with the concerned Court of the Joint District Judge having territorial jurisdiction and it will be  deemed that the Court of the Joint District  Judge has been in fact established/declared as an Artha Rin Adalat under the provisions of  the Ain, 2003. Section 4(4) of the Ain provides that  for implementation of the objective of this section the Government shall by Notification  in the Official Gazette  declare a Court of  Joint District Judge  as the  Artha Rin Adalat  and after such declaration  the functions of the  said  Court of Joint District Judge would be closed or stayed and the learned District Judge shall by an order transfer all pending cases from this Court to any other Court of  Joint District Judge  under his jurisdiction.  Regarding the appointment of Judges of the Artha Rin Adalat, Section 4(5) of the Ain envisages that the Government shall in consultation with the Supreme Court, appoint   Judges of the Artha Rin Adalats from amongst the Joint District Judges and the Joint District Judges appointed in the aforesaid manner shall not be able to adjudicate any other civil or criminal cases except the Artha Rin Suit. Section 4(7) of the Ain provides that if a Judge of the Artha Rin Adalat has temporarily been unable to perform his duty owing to leave, illness or any other reason then the District Judge may appoint a Joint District Judge under his jurisdiction and control to perform the functions and duties of a Judge of Artha Rin Adalat for the time being on full time basis or in addition to his own duties. Section 5 (1) of the Ain contemplates that notwithstanding anything contained in any other law and subject to the provisions of Sub-Sections (5) and (6), a financial institution may institute a suit in connection with the realization of loan in the Artha Rin Adalat under the Ain. From the scheme of the Ain as contemplated in the different sections of the Ain more particularly sections 4,5,6,26,28 and 47 it can be construed that Artha Rin Adalat is not a full-fledged Civil Court with all the powers and jurisdiction of a Civil Court. Rather it is a Civil Court of a defined and limited jurisdiction as contemplated in different provisions of the Ain. In view of the provisions of section 6(1) of the Ain holding of trial and disposing of any suit filed in an Artha Rin Adalat the provisions of the Code of Civil Procedure, 1908 are applicable if these are not in conflict with the provisions of the Ain, 2003. Moreover, Section 26 provides that as regards execution of decree passed under this Ain the provisions of the Code of Civil Procedure, 1908 are applicable if these are not in conflict with the provisions of the Ain. In the instant case, we are of the view that the provisions of Order 1 Rule 10 of the Code are not in conflict with those of the Ain, 2003 inasmuch as the former is very much  in conformity with the provisions of section 6(5) of the Ain and as such the former is applicable in the instant suit.

The High Court Division also found that the Order No. 13 dated 06.04.2008 and Order No. 49 dated 19.01.2009 are not related to the administration of the Court and these orders cannot be passed by the learned Judge-In-Charge having the rank of an Additional District Judge. From the scheme of the Artha Rin Adalat Ain, 2003 and the provisions of Section 4 of the Ain it is clear that the only persons legally competent to be appointed to act as Judges of the Artha Rin Adalat are Joint District Judges.   In view of Section 4 (7) of the Ain even those who are performing the functions of Judges–in-Charge of the Artha Rin Adalat shall have to be appointed from amongst the Joint District Judges. Therefore, the High Court Division rightly set aside those orders which were passed by the learned Judge-in-Charge who was holding the rank of Additional District Judge but part of the impugned Order No. 1 dated 23.01.2008 relating to the registration of the suit was kept valid as that was an administrative order.  The learned Additional District Judge has no jurisdiction to pass any judicial order in Artha Rin Suit in view of the provisions of Section 4 of the Artha Rin Adalat Ain, 2003. There is no illegality in the order of the High Court Division in nullifying the proceedings presided over by the learned Additional District Judge in the Artha Rin suit. As per provisions of Section 5 of the Ain any suit for recovery loan of any financial institution shall be filed and tried by Artha Rin Adalat. Section 5(1) of the Artha Rin Adalat Ain provides that notwithstanding anything contained in any other provisions of law and subject to the provisions of Sub-Sections (5) and (6), any suit for realization of any loan shall be filed in the Artha Rin Adalat established, created or deemed to have been created and the suit shall be disposed of in the said Adalat. We have already opined that the learned Additional District Judge cannot be a Judge of Artha Rin Adalat as per provisions of Sub-Sections (4) and (7) of Section 4 of the said Ain, 2003. In view of the above observations and findings we are of the view that the impugned order of attachment before judgment passed by the learned Additional District Judge acting as a Judge of Artha Rin Adalat without having any power and jurisdiction being Coram non judice has been passed without lawful authority and  jurisdiction. We are in full agreement with the views taken by the High Court Division to the extent that the learned Additional District Judge who is in charge of the Artha Rin Adalat cannot pass any judicial order in relation to Artha Rin Suit. Therefore, we do not find any merit in the Civil Appeal No. 175 of 2011 and as such the appeal is liable to be dismissed.

In Civil Appeal No. 176 of 2011 on perusal of the record we find that Order No. 49 dated 19.01.2009 was not issued by the learned Additional District Judge, Chittagong rather it was passed by the learned Judge of the Artha Rin Adalat No. 1 Chittagong, who in fact being a Joint District Judge has been appointed legally in accordance with the provisions of law. It is regrettable to note that the High Court Division lost sight of this fact in deciding the case. The established principle of law is that either a necessary party or a proper party may be added in the suit. A necessary party is one in whose absence no effective decree can be passed. Where as a proper party is one whose presence is not necessary for passing an effective decree. The presence of proper party facilities more effectual and complete adjudication of all the disputes and avoid multiplicity of proceeding between the parties. A proper party is one who is legally interested in the suit. A legally interested party is one whose rights has been adversely affected by any order of a court.  It appears that order No.1 dated 23.01.2008 and order No. 13 dated 6.4.2008 of the Artha Rin Suit were passed for attachment of the property in question before judgment  and order No. 33 dated 11-09-2008 and  order No. 36 dated 18-09-2009 were passed restraining the appellant in Civil Appeal No. 176 of 2012 by an order of temporary injunction from carrying on with any construction work on the property in question which have adversely affected the rights of the appellant as a developer. In that view of the  matters the appellant- developer being a proper party is entitled to be added as a party to the said Suit and as such Order No. 49 dated 19.1.2009 is illegal and without lawful authority for  not allowing it to be added as a party in the suit. Moreover, it has been asserted by the appellant that the agreement dated 26.7.2007 between the appellant-developer and the respondent No. 4 along with the power of attorney dated 25.09.2007 were executed after receiving Tk.6,14,00,000/- as consideration money long before filing of the suit on 23.01.2008. The appellant-developer further asserted that the property was transferred to the Chairman of the appellant company by sale deed No. 8401 dated 27.10.2008 and in view of the order of the attachment before judgment the property in question of Schedule-A to the writ petition no longer belonged to the respondent No.4. The appellant further asserted that its rights has been affected by order Nos.1, 13 (attachment before judgment), 33 and 36 (temporary injunction) passed by the respondent No.2 in the said suit and as such the appellant is a proper party to the suit. The appellant further stated that it acquired right, title, interest and possession in the disputed land by operation of law by way of redemption of equitable mortgage in respect of debt of the respondent No. 4 with Trust Bank Limited by making payment of Tk.6(six) crones vide cheque No. 02100139 dated 25.07.2007, i.e. long before filing of the suit and  the appellant-developer was put into possession in the said property and that the appellant had been clothed with the status of subrogee, mortgagee in possession, acquiring all the rights and obligations of the subrogator Trust Bank Ltd. On the other hand, it has been asserted that for the payment of mortgage money and sale price of beneficial interest of the Respondent No. 4 in the property, charge has already been created infavour of the appellant-developer much earlier than passing the order of attachment before judgment on 23.01.2008 and as such the appellant-developer is a proper party in the suit. Therefore, Order No. 49 dated 19.01.2009 is not sustainable in law. The High Court Division while making the Rule absolute upon setting aside the order No., 49 dated 19.05.2009 committed illegality by not allowing the appellant-developer to be added as a party in the suit under Order 1 Rule 10 of the Code of Civil Procedure inasmuch as Section 6(5) of the Ain which provides guidelines as to how the defendants can be impleaded in the proceedings of Artha Rin Suit is in conformity with the provisions of the aforesaid Order. In that view of the matter the appellant-developer is entitled to be added as a party in the suit in the category of defendant. Therefore we find merit in Civil Appeal No. 176 of 2011.

It appears that the appellant-developer of the Civil Appeal No. 176 of 2011 has been adversely affected by the judgment and order dated 19-01-2011 passed by the High Court Division making the rule absolute so far as it relates to setting aside of the Order No. 49 dated 19-01-2009 passed by the respondent No. 2 in Artha Rin Suit No. 7 of 2008 without passing any necessary order for making it as an added party in the suit in the category of defendant.  There is no provision in the Artha  Rin Adalat Ain, 2003 which debars a person adversely affected by the decision in an Artha Rin Suit from being added as a party to the suit. We find substance in the arguments put forward by the learned Senior Advocate for the appellant in Civil Appeal No. 176 of 2011.

In view of the above observations and findings Civil Appeal No. 175 of 2011 is dismissed and Civil Appeal No. 176 of 2011 is, however, allowed. There is no order as to costs.

Ed.