Case No: Writ Petition No. 4038 of 2011
Judge: Md. Ashfaqul Islam,
Court: High Court Division,,
Advocate: Mr. Harunur Rashid,,
Citation: 1 LNJ (2012) 538
Case Year: 2012
Respondent: Bangladesh and others
Subject: Artha Rin, Writ Jurisdiction,
Delivery Date: 2012-03-12
(Special Original Jurisdiction)
|Md. Ashfaqul Islam, J.
Mustafa Zaman Islam, J.
Vs.Bangladesh and others
Artha Rin Adalat Ain (VIII of 2003)
Section 34 (12)
Admittedly, the petitioner was arrested on 5.6.2008 vide order dated 30.4.2008 and was released from civil imprisonment after serving more that six months on 27.11.2008. According to the provisions of section 34(12) of the Artha Rin Adalat Ain, 2003 the petitioner cannot be put to civil imprisonment for the second time and hence the impugned order is ex-facie illegal without any lawful authority and is of no legal effect. …(6 and 8)
Writ Petition No. 4038 of 2011
At the instance of the petitioner Osarunnessa, this Rule Nisi was issued calling upon the respondents to show cause as to why the Order no.17 dated 25.01.2011 passed by the learned Judge, Artha Rin Adalat No.1, Dhaka in Artha Execution Case No. 195 of 2007 issuing warrant of arrest (Annexure-B in violation of Section 34 of the Artha Rin Adalat Ain, 2003 and order 21 Rule 37 and section 56 of the Code of Civil Procedure shall not be passed without lawful authority and is of no legal effect.
2. The background leading to the Rule, in short, is that the husband of the petitioner approached the respondent Bank for House Building Loan and on 24.12.1990 Tk. 75,000/- sanctioned for staff house building loan and on 28.10.1993 Tk. 20,0000/- for motorcycle loan. The petitioner is the guarantor of the loan. Petitioner gradually paid loan for Tk. 22,674/- but due to various reasons failed to adjust dues of the Bank. Respondent No. 3 Manager Janata Bank, Local Office, Dulkusha, Dhaka on 29.4.2003 filed a suit before the learned Artha Rin Adalat No.1, Dhaka, for recovery of money inclusive interest amounting to Tk. 14,05,888/- and the said suit was registered as Artha Rin Suit No. 423 of 2004.
3. The suit was decreed exparte in the year 2004 followed by Artha Execution Case No.87 of 2005. In the Execution Case property was sold in auction on 07.03.2007. The Bank then filed second Execution Case No. 195 of 2007 (Annexure-A). In that Second Execution case on 25.01.2011 the Bank filed an application praying for issuing warrant of arrest of the petitioner for realizing all dues and the Court issued warrant of arrest as prayed on 25.01.2011 (Annexure-B and B1).
4. The petitioner was arrested on 05.06.2008 vide order No. 8 dated 3.4.2008 and thereafter on 27.11.2008 the Court released the petitioner since she served out more than six months civil imprisonment (Annexure-D). Thereafter by the impugned order No. 17 dated 25.01.2011 again warrant of arrest has been issued against the petitioner against which the petitioner moved this Division and obtained the present Rule and stay.
5. Mr. Md. Harunur Rashid, the learned counsel appearing on behalf of the petitioner after placing the petition, impugned order and other Annexures with the petition mainly submits that the impugned order is exfacie illegal and not sustainable under law since the petitioner had already been arrested pursuance to Artha Rin Adalat’s order which she served out and hence as per section 34(12) of the Ain she cannot be put to civil imprisonment again.
6. The Rule is not opposed by the respon-dents. However, Mr. S.M. Moniruzzaman, the learned counsel candidly submits that the law is very much clear on this issue and the petitioner on that score cannot be put to civil imprisonment for the second time.
7. Heard the learned counsels for both sides and considered their submissions. Section 34(12) states as follows:
8. Admittedly the petitioner was arrested on 5.6.2008 vide Order No.8 dated 30.4.2008 and was released after serving more than six months on 27.11.2008 (Annexure-D). Therefore, as per section 34(12) the petitioner cannot be put to civil imprisonment for the second time and for that reason we hold that the order impugned against is exfacie illegal and without any lawful authority and is of no legal effect.
9. With these observations the Rule is made absolute. The order No. 17 dated 25.11.2011 passed by the Artha Rin Adalat No.1 in Artha Execution Case No. 195 of 2007 issuing warrant of arrest (Annexure-B(i) is declared to have been passed without lawful authority and is of no legal effect and hereby set aside.
Communicate this order at once.