Pubali Bank Ltd. Vs. Bangladesh and others [4 LNJ (2015) 366]

Case No: Writ Petition No. 2258 of 2009

Judge: J. B. M. Hassan,

Court: High Court Division,,

Advocate: Mahbubey Alam,Mr. Mrinal Kanti Biswas,Ms. Kazi Zinat Hoque,,

Citation: 4 LNJ (2015) 366

Case Year: 2015

Appellant: Pubali Bank Ltd.

Respondent: Bangladesh and others

Subject: Artha Rin, Writ Petition, Ex-parte Decree,

Delivery Date: 2012-10-07


HIGH COURT DIVISION
(SPECIAL ORIGINAL JURISDICTION)
 
Zinat Ara, J.
And
J. B. M. Hassan, J.

 
Judgment on
07.10.2012
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Pubali Bank Ltd., Principal Branch, 26, Dilkusha C/A, Motijheel, Dhaka.
. . . Petitioner
-Versus-
The Government of the People’s Republic of Bangladesh and others
. . .Respondents
 
Artha Rin Adalat Ain (VIII of 2003)
Section 19
Section 19(4) of the Ain, though empowers the Adalat to allow the application instantly if the condition provided in section 19(3) of the Ain as to deposit of 10% of the decretal dues is complied with but that application has to be filed within the limitation period as provided under section 19(2) of the Ain and subject to section 19(3) of the Ain. Thus, section 19(4) of the Ain comes into operation if the application is filed in compliance with both the conditions as prescribed in sections 19(2) and 19(3) of the Ain i.e. limitation period and deposit of 10% of the decretal dues. . . . (15)

Artha Rin Adalat Ain (VIII of 2003)
Section 19(2)
Under section 19(2) of the Ain, the defendant can also file application for setting aside exparte decree within 30 days from the date of knowledge (অবগত হইবার ৩০ দিব­সর ম­ধ্য) about the said decree. But, to exercise such statutory right, the defendant introduces a particular fact as to date of his knowledge about the exparte decree. . . . (18)

Artha Rin Adalat Ain (VIII of 2003)
Section 19(2)  
On pronouncement of exparte decree a legal right has been accrued in favour of the plaintiff (decree holder) and allowing of an application for setting aside the said decree, is curtailing the accrued right of the decree-holder (plaintiff) and as such, natural justice demands that decree holder (plaintiff) should be heard in disposing of the said application so as to fair adjudication of the fact about the correctness of the date of knowledge as alleged by the defendant. . . .(19)

Artha Rin Adalat Ain ( VIII of 2003)
Section 19(2)  
Though, section 19(2) of the Ain does not expressly prescribe for issuance of any notice upon the decree-holder plaintiff to show cause in determining the correctness of the date of knowledge but it is the established principle of law that even when a statute is silent, notice has to be given if any person is sought to be affected in his right, interest, property or character.  . . . (20)

Artha Rin Adalat Ain (VIII of 2003)
Section 19
In addition to compliance of section 19(3) by depositing 10% of the decretal dues the defendant shall have to satisfy the Adalat that the application has been filed within the limitation period inasmuch as filing of an application under section 19(2) of the Ain is subject to compliance of limitation and the section 19(3) of the Ain. Therefore, on receipt of an application in pursuance of section 19(2) of the Ain, if the Adalat is satisfied that both the conditions of section 19(2) and 19(3) of the Ain, is complied with, it shall allow the said application as per section 19(4) of the Ain. . . . (22)

Artha Rin Adalat Ain (VIII of 2003)
Section 19(4)
Section 19(4) of the Ain provides that on deposit of 10% of the decretal dues the Adalat shall allow the application setting aside the ex-parte decree and the suit shall be restored to its original file and number. But before that the defendant has to satisfy the Adalat about requirement of section 19(2) of the Ain in the manner as discussed above i.e. whether the defendant filed the application within the limitation period has to be proved and that since section 19(2) of the Ain is subject to section 19(3) of the Ain, therefore, requirement of deposit of 10% of the decretal dues under section 19(3) of the Ain shall also have to be complied with before deciding the limitation period. Thus, it is apparent that unless both the requirements of sections 19(2) and 19(3) of the Ain are complied with, the Adalat has no scope to allow the application under section 19(4) of the Ain setting-aside the exparte decree even if the defendant deposits 10% of the decretal dues. . . . (23)

Artha Rin Adalat Ain (VIII of 2003)
Section 19(4)
Section 19(4) of the Ain is mere a operating provision prescribed by the legislature to allow the application for setting aside the exparte decree and to restore the suit to its original file and number but the said application has to be filed in compliance with the sections 19(2) and 19(3) of the Ain. Therefore, to apply section 19(4) of the Ain, the Adalat has to be satisfied that the application has been filed properly within the limitation period as prescribed in section 19(2) of the Ain and also in compliance with section 19(3) of the Ain (deposit of 10% of the decretal dues) and that in determining such limitation period particularly the correctness of the date of knowledge as per requirement of section 19(2) of the Ain, notice has to be served upon the plaintiff. . . . (24)

Abul A’la Moudoodi Vs. West Pakistan, 17 DLR and Maneka Gandhi Vs. Union AIR 1978 (SC) 597 ref.
 
Mr. Mrinal Kanti Biswas, Advocate
. . . For the petitioners

Mr. Mahbubey Alam, Attorney General with
Ms. Kazi Zinat Hoque, Deputy Attorney General
.... For the respondent No.4
 
Writ Petition No. 2258 of 2009
 
JUDGMENT
J.B.M. Hassan, J:
 
By filing an application under Article 102 of the Constitution of the People’s Republic of Bangladesh, the petitioner obtained this Rule on the following terms:

“Let a Rule Nisi be issued calling upon the respondent Nos.1-7 to show cause as to why the provision of section 19(4) empowering the Judge, Artha Rin Adalat to set aside the        ex-parte decree at once only on deposit of 10% money of the decretal dues without issuing a notice to the decree holder and without giving the decree-holder an opportunity to explain its/his position and without enquiring about the actual date of knowledge of the judgment-debtor about the decree should not be declared to be arbitrary, discriminatory, inconsistent with the principle of natural justice, and ultravires the provisions of the Constitution and why the impugned order dated 04.03.2009 passed in pursuance of that provision by the learned Judge of the Artha Rin Adalat No.3, Dhaka in Artha Rin Suit No.174 of 2006 should not be declared to have been passed without lawful authority and is of no legal effect and/or pass such other or further order or orders as to this Court may seem fit and proper.”
 
Subsequently, on the basis of an application filed by the petitioner a supplementary Rule was issued on 06.06.2012 in the following manner:

“Let a supplementary Rule Nisi be issued calling upon the respondents to show cause as to why the order No.30 dated 15.07.2008 allowing the Miscellaneous Case No. 668 of 2008 setting aside the ex-parte judgment and decree dated 05.03.2008 passed by the Artha Rin Adalat No.3, Dhaka in Artha Rin Suit No. 174 of 2006 should not be declared to  have been passed without lawful authority and is of no legal effect and/or pass such other or further order or orders as to this Court may seem fit and proper.”
 
Relevant facts necessary for disposal of the Rule are that the petitioner, Pubali Bank Limited, Principal Branch, 26, Dilkusha Commercial Area, Dhaka (shortly, the Bank) as plaintiff instituted Artha Rin Suit        No. 174 of 2006 on 20.08.2006 before the Artha Rin Adalat No.3, Dhaka (shortly, the Adalat) against the respondent Nos. 3-7 for recovery of loan money amounting to Tk. 52.84,652.86. Summons were duly served upon the defendants in all manner as per provisions of law including paper publication. The defendant Nos. 1-3 and 5 appeared in the suit and filed written statements on 15.02.2007 and 12.03.2007 respectively. Subsequently, they did not pursue the suit and as a result the suit was decreed ex-parte on 05.03.2008 (decree signed on 10.03.2008). The Bank put the decree into execution on 22.05.2008 through Artha Jari Case No. 430 of 2008 in the Adalat for realization of Tk. 60,46,670.86 including interest and costs of the suit as per decree. Notices in the name of judgment-debtors were published in the daily news papers except the judgment-debtor No.5 who had already received the notice of execution case.
 
On 04.06.2008 the defendant No.4 filed Miscellaneous Case No. 668 of 2008 under section 19 of the Artha Rin Adalat Ain, 2003 (shortly, the Ain) for setting aside the ex-parte decree dated 05.03.2008 and also prayed for restoration of the suit to its original file and number stating, inter alia, that summons was not served upon this defendant and that this defendant was not aware about the suit as well as the decree; from the letter dated 13.05.2008 issued by the Food department, the defendant, for the first time, came to know about the suit as well as the decree; the defendant ascertained the fact of decree by an information slip obtained on 14.05.2008 and thereafter by depositing 10% of the decretal dues, the defendant filed the miscellaneous case.
 
Without issuing any notice upon the plaintiff (decree holder), the Adalat by order dated 15.07.2008 allowed the miscellaneous case setting aside the    ex-parte decree dated 05.03.2008 and thereby restored the Artha Rin Suit No. 174 of 2006. On 31.08.2008 the defendant No.4 when served the copy of the written statement upon the plaintiff Bank, for the first time it came to know about the impugned order dated 15.07.2008 by which miscellaneous case was allowed and suit was restored to its original file and number.
 
On 18.11.2008 the Bank filed an application before the Adalat under section 57 of the Ain for recalling the order dated 15.07.2008 and that the said application was rejected on 04.03.2009.
 
In the aforesaid circumstances, the plaintiff-Bank filed this writ petition challenging the order dated 04.03.2009 as well as the vires of section 19(4) of the Ain and obtained the Rule. Subsequently, by a supplementary Rule the order dated 15.07.2008 setting aside the ex-parte decree has also been challenged.
 
Respondent No.4 has filed affidavit-in-opposition controverting the statements made in the writ petition. This respondent contends that there is no provision in section 19 of the Ain to serve notice upon the plaintiff-decree holder before setting aside the ex-parte decree; that as per requirement of section 19(3) of the Ain the defendant deposited 10% of the decretal dues and that the legal requirement having been complied with, the Adalat allowed the miscellaneous case as per sanction of section 19(4) of the Ain; that no summons was served upon the defendant No.4 and that being unaware about the suit, this defendant could not contest the suit and as a result the suit was decreed ex-parte; that the defendant No.4 could not know about the ex-parte decree in time and as a result the application for setting aside the decree was filed beyond 30 days of the ex-parte decree but as soon as the defendant came to know about the said decree, he filed this miscellaneous case within 30 days from date of his knowledge and therefore, the miscellaneous case being filed as per requirement of section 19(2) of the Ain, the Adalat allowed the miscellaneous case finding deposit of 10% of the decretal dues. Therefore, the Rule does not have any merit and as such, it is liable to be discharged.
 
Mr. Mrinal Kanti Biswas, the learned Advocate appearing for the writ petitioner (the Bank) submits that by passing the exparte decree, a legal right has been accrued in favour of the plaintiff but section 19(4) of the Ain empowers the Adalat to set aside the said ex-parte decree curtailing the legal right of the plaintiff without issuing any notice upon the decree holder (plaintiff) and only on deposit of 10% of the decretal dues. Therefore, the said provision is arbitrary, against the principle of natural justice and thus, ultravires the Constitution. He also submits that the application for setting aside the ex-parte decree was filed beyond 30 days of the decree. Therefore, the defendant was required to satisfy the Adalat about the date of knowledge as per requirement of section 19(2) of the Ain but without complying with the said provision of law, the Adalat allowed the miscellaneous case setting aside the ex-parte decree and as such the impugned order dated 15.07.2008 is liable to be declared to have been passed without lawful authority.
 
Mr. Mahbubey Alam, the learned Attorney General appearing for the respondent No.4 submits that the Artha Rin Adalat Ain is a special law enacted by the legislature for recovery of the loan money by a speedy trial and that to effect the object of law, section 19(4) of the Ain has been provided by the legislature to have an effectual adjudication by setting aside exparte decree directly in order to avoid delay and for expedite disposal of the suits and that the legislature has put an extra condition in this provision requiring the defendant (judgment-debtor) to deposit 10% of the decretal amount. Therefore, this section itself is not arbitrary.  He further submits that when the judgment debtor deposits 10% of the decretal dues as per section 19(3) of the Ain, the Adalat applies the section 19(4) allowing the same setting aside the ex-parte decree and as such, it has no relation to the service of notice upon the plaintiff. However, the learned Attorney General frankly concedes that when the application for setting aside exparte decree is filed beyond 30 days of passing the decree by introducing the fact as to date of knowledge, the defendant is required to prove it by a fair procedure and the plaintiff deserves a notice in such adjudication like the provisions as provided in Order IX Rule 13 of the Code of Civil Procedure (the Code) for setting aside the ex-parte decree. Since section 19 has not provided any such provision to serve notice upon the plaintiff decree holder, this Court may suggest the legislature to provide such provision of service of notice to enable the plaintiff decree holder to know about the miscellaneous case. But for want of the provision as to non-service of notice, it can not be said that section 19(4) of the Ain contradicts the Constitution or it violates the principle of natural justice.
 
We have gone through the writ petition as well as annexed papers and affidavit-in-opposition filed by the respondent No. 4.
 
Admittedly, the Artha Rin Suit filed by the petitioner plaintiff was decreed ex-parte on 05.03.2008.
 
Section 19 of the Ain enunciates the provisions relating to ex-parte decree and also for setting aside the same. For our better understanding the said provisions are quoted herein below:
 
“১৯z (১) মামলার শুনানীর জন্য ধার্য কোন তারিখে বিবাদী আদালতে অনুপসিÛত থাকিলে, কিংবা মামলা শুনানীর জন্য গৃহীত হইবার পর ডাকিয়া বিবাদীকে উপসিÛত পাওয়া না গেলে, আদালত মামলা একতরফা সূত্রে নিস্পত্তি করিবে
(২) কোন মামলা একতরফা সূত্রে ডিত্র্রী হইলে, বিবাদী উক্ত একতরফা ডিত্র্রীর তারিখের অথবা উক্ত একতরফা ডিত্র্রী সম্পর্কে অবগত হইবার ৩০ (ত্রিশ) দিবসের মধ্যে, উপ-ধারা(৩) এর বিধান সাপেক্ষে, উক্ত একতরফা ডিত্র্রী রদের জন্য দরখাস¹ করিতে পারিবেনz
(৩) উপ-ধারা (২) এর বিধান অনুযায়ী দরখাস¹ দাখিলের ক্ষেত্রে বিবাদীকে উক্ত দরখাস¹ দাখিলের তারিখের পরবর্তী ১৫ (পনের) দিবসের মধ্যে ডিত্র্রীকৃত অর্থের ১০% এর সমপরিমান টাকা বাদীর দাবীর সেই পরিমানের জন্য স্বীকৃতিস্বরূপ নগদ সংশ্লিষ্ট আর্থিক প্রতিষ্ঠানে, অথবা জামানতস্বরূপ ব্যাংক ড্রাফট, পে-অর্ডার বা অন্য কোন প্রকার নগদায়নযোগ্য বিনিমেয় দলিল (Negotiable Instrument)  আকারে জামানত হিসাবে আদালতে জমাদান করিতে হইবে
(৪) উপ-ধারা (৩) এর বিধানমতে ডিত্র্রীকৃত অর্থের ১০% এর সমপরিমান টাকা জমাদানের সংগে সংগে দরখাস¹টি মঞ্জুর হইবে, একতরফা ডিত্র্রী রদ হইবে এবং মূল মামলা উহার পূর্বের নম্বর ও নথিতে পুনরুজ্জীবিত হইবে, এবং আদালত এ~ মর্মে একটি আদেশ লিপিবদ্ধ করিবে;  এবং অতঃপর মামলাটি যে পর্যায়ে এক তরফা নিস্পত্তি হইয়াছিল, ঐ পর্যায়ের অব্যবহিত পূর্ববর্তী পর্যায় হইতে পরিচালিত হইবেz
(৫) বিবাদী উপ-ধারা (৩) বিধানমতে ডিত্র্রীকৃত অর্থের ১০% এর সমপরিমান টাকা বাদীর দাবীর সেই পরিমানের জন্য স্বীকৃতিস্বরূপ নগদ সংশ্লিষ্ট আর্থিক প্রতিষ্ঠানে, অথবা জামানতস্বরূপ ব্যাংক ড্রাফট, পে-অর্ডার বা অন্য কোন প্রকার নগদায়নযোগ্য বিনিমেয় দলিল (Negotiable Instrument) আকারে জামানত হিসাবে আদালতে জমাদান করিতে ব্যর্থ হইলে, উক্ত দরখাস¹টি সরাসরি খারিজ হইবে; এবং আদালত ঐ মর্মে একটি আদেশ লিপিবদ্ধ করিবে
(৬) অর্থ ঋন আদালতে বিচারাধীন কোন মামলা, বাদীর অনুপসিÛতির বা ব্যর্থতা হেতু খারিজ করা যাইবে না, এবং এইরূপ ক্ষেত্রে আদালত, নথিতে উপসÛাপিত কাগজাদি পরীক্ষা করিয়া গুনাগুন বিশ্লেষণে মামলা নিস্পত্তি করিবে” (underlined, emphasis supplied)
 
On perusal of the aforesaid provisions, it appears that in the absence of defendant, the Adalat can pass exparte decree under section 19(1) of the Ain and that the defendant can also file application under section 19(2) of the Ain to set aside the said exparte decree within 30 days, from the date of passing the said exparte decree or from the date of knowledge about the exparte decree. Moreover, the application has to be filed subject to provision of section 19(3) of the Ain, which requires the defendant to deposit 10% of the decretal dues, within 15 days after filing the aforesaid application. Therefore, it is clear that section 19(2) and 19(3) of the Ain are complementary to each other and has to be read together. As such, to file an application for setting aside exparte decree the required conditions as provided in both the provisions i.e. (sections 19(2) and 19(3) of the Ain), must be complied with. In other words, to file such application the defendant has to satisfy the Adalat about limitation period as per requirement of section 19(2) of the Ain and he is also required to comply with the provision of section 19(3) of the Ain i.e. deposit of 10% of the decretal dues (উপধারা (২) এর বিধান অনুযায়ী দরখাস¹ দাখিলের ক্ষেত্রে বিবাদীকে উক্ত দরখাস¹ দাখিলের তারিখের পরবর্তী ১৫ (পনের) দিবসের মধ্যে ডিত্র্রীকৃত অর্থের ১০% এর| সমপরিমান টাকা -----আদালতে জমাদান করিতে হইবে) and that the Adalat has no scope to consider such application if any of the aforesaid conditions is left in filing the application.
 
Section 19(4) of the Ain, though empowers the Adalat to allow the application instantly if the condition provided in section 19(3) of the Ain as to deposit of 10% of the decretal dues is complied with but that application has to be filed within the limitation period as provided under section 19(2) of the Ain and subject to section 19(3) of the Ain. Thus, section 19(4) of the Ain comes into operation if the application is filed in compliance with both the conditions as prescribed in sections 19(2) and 19(3) of the Ain i.e limitation period and deposit of 10% of the decretal dues.
 
According to section 19(2) of the Ain the limitation period to file such application has been prescribed in two ways i.e either 30 days from the date of passing exparte decree or 30 days from the date of knowledge about the exparte decree.
 
As statutory right under section 19(2) of the Ain, the defendant can file the application to set aside exparte decree within 30 days from the date of said decree and the Adalat can satisfy itself by reckoning the days about the said limitation period. Thus, when the application is filed within 30 days by depositing 10% of the decretal dues, in such circumstances, the Adalat can directly allow the application under section 19(4) of the Ain. Yet, as soon as an order is made setting aside exparte decree, the Adalat shall cause a notice thereof to be served upon the plaintiff at the cost of the defendant so that the revived suit does not proceed unrepresented.
 
Under section 19(2) of the Ain, the defendant can also file application for setting aside exparte decree within 30 days from the date of knowledge (অবগত হইবার ৩০ দিবসের মধ্যে) about the said decree. But, to exercise such statutory right, the defendant introduces a particular fact as to date of his knowledge about the exparte decree. Question arises, whether in such circumstances, the Adalat can allow the application directly on deposit of 10% of the decretal dues. 
 
As this right of the defendant is subject to a limitation period of 30 days from the date of his knowledge about the said decree, therefore, it is to be exercised subject to proof about the date of knowledge. Moreover, on pronouncement of exparte decree a legal right has been accrued in favour of the plaintiff (decree holder) and allowing of an application for setting aside the said decree, is curtailing the accrued right of the decree-holder (plaintiff) and as such, natural justice demands that decree holder (plaintiff) should be heard in disposing of the said application so as to fair adjudication of the fact about the correctness of the date of knowledge as alleged by the defendant.
 
Though, section 19(2) of the Ain does not expressly prescribe for issuance of any notice upon the decree-holder plaintiff to show cause in determining the correctness of the date of knowledge but it is the established principle of law that even when a statute is silent, notice has to be given if any person is sought to be affected in his right, interest, property or character and to lay this principle the leading cases are Abul A’la Moudoodi Vs. West Pakistan reported in 17 DLR (SC) 209 and the case of Maneka Gandhi Vs. Union of India reported in AIR 1978 (SC) 597.
 
The ratio decidendi as laid down in the aforementioned cases has been reflected in the case of Jobon Nahar and others Vs. Bangladesh, through the Secretary, Ministry of Housing and Public Works Department, Government of the People’s Republic of Bangladesh and others reported in 49 DLR (HCD) 108 wherein their Lordships held as under:

“The principle of natural justice not only applies to Courts but, nowadays more and more it is being applied to administrative process to ensure procedural fairness. In many occasions it has been held by this Court that violation of the principle results in jurisdictional error. The principle of natural justice now extends to any person or body deciding matters affecting the rights and interests of an individual. Following some English decisions, the Courts of this sub-continent have held that the principle of natural justice should be read to have been incorporated in every statute unless it is excluded expressly or by necessary implication by statute. (Abul Ala Moudoodi Vs. West Pakistan 17 DLR (SC) 209)”. (underlined, emphasis supplied)
 
Therefore, when an application for setting aside the ex-parte decree is filed beyond 30 days from the date of passing the decree and the defendant alleges that he has come within 30 days from the date of his knowledge within the purview of section 19(2) of the Ain, in such situation, the plaintiff has got a right to be informed about hearing of the said application by proper notice and the Adalat on hearing both the parties, shall decide the issue as to correctness of the defendant’s alleged date of knowledge in order to satisfy itself towards compliance of the section 19(2) of the Ain. Thus, in addition to compliance of section 19(3) by depositing 10% of the decretal dues the defendant shall have to satisfy the Adalat that the application has been filed within the limitation period inasmuch as filing of an application under section 19(2) of the Ain is subject to compliance of limitation and the section 19(3) of the Ain. Therefore, on receipt of an application in pursuance of section 19(2) of the Ain, if the Adalat is satisfied that both the conditions of section 19(2) and 19(3) of the Ain, is complied with, it shall allow the said application as per section 19(4) of the Ain.
 
Section-19(4) of the Ain provides that on deposit of 10% of the decretal dues the Adalat shall allow the application setting aside the ex-parte decree and the suit shall be restored to its previous file and number. But before that the defendant has to satisfy the Adalat about requirement of section 19(2) of the Ain in the manner as discussed above i.e. whether the defendant filed the application within the limitation period has to be proved and that since section 19(2) of the Ain is subject to section 19(3) of the Ain, therefore, requirement of deposit of 10% of the decretal dues under section 19(3) of the Ain shall also have to be complied with before deciding the limitation period. Thus, it is apparent that unless both the requirements of section 19(2) and 19(3) of the Ain are complied with, the Adalat has no scope to allow the application under section 19(4) of the Ain setting-aside the exparte decree even if the defendant deposits 10% of the decretal dues.
 
In view of above discussions as well as the legal position, we are led to hold that section 19(4) of the Ain is mere a operating provision prescribed by the legislature to allow the application for setting aside the exparte decree and to restore the suit to its previous file and number but the said application has to be filed in compliance with the sections 19(2) and 19(3) of the Ain. Therefore, to apply section 19(4) of the Ain, the Adalat has to be satisfied that the application has been filed properly within the limitation period as prescribed in section 19(2) of the Ain and also in compliance with section 19(3) of the Ain (deposit of 10% of the decretal dues) and that in determining such limitation period particularly the correctness of the date of knowledge as per requirement of section 19(2) of the Ain, notice has to be served upon the plaintiff. This requirement as to service of notice is silent in section 19(2) of the Ain and not in section 19(4) of the Ain. In view of legal position, we are not inclined to interfere with the provision of section 19(4) of the Ain because, such interference shall, rather, frustrate the purpose of section 19 of the Ain as a whole to restore a suit decreed exparte to its previous file and number. However, respondent No.1 shall take steps to remove such ambiguity by making necessary amendment of section 19 of the Ain relating to service of notice upon the plaintiff in the light of the observations as made in the body of this judgment. Therefore, the Rule so far as it relates to the vires of section 19(4) of the Ain does not call for any interference.
 
In the present case ex-parte decree was passed on 05.03.2008. Section 19(2) of the Ain requires the defendant to file an application for setting aside exparte decree either within 30 days from the date of passing of the said decree or within 30 days from the date of knowledge about the said exparte decree. Admittedly, here in this case the defendant filed the miscellaneous case on 04.06.2008 i.e. beyond 30 days of passing the ex-parte decree and the defendant claims that the miscellaneous case has been filed within 30 days from the date of its knowledge. To establish such claim as to date of knowledge, the defendant has introduced the fact that the defendant was not aware about the ex-parte decree and for the first time it came to know about the said decree on 13.05.2008 and from the said date of knowledge within 30 days the defendant filed the miscellaneous case (application) for setting aside the exparte decree as per sanction of second part of section 19(2) of the Ain. Since the defendant claims that the application has been filed within 30 days from the date of knowledge, therefore, the Adalat has to be satisfied about the said date of knowledge by a proper and fair adjudication, giving an opportunity of being heard to both the plaintiff and the defendant so as to determine the correctness/genuineness of alleged date of knowledge.
 
But from the impugned order dated 15.07.2008, it appears that without being satisfied about correctness/genuineness of the alleged date of knowledge, the Adalat allowed the miscellaneous case finding deposit of 10% of the decretal dues which is one of the requirements to file and consider the application for setting aside the ex-parte decree as per section 19 of the Ain inasmuch as, unless the other requirement as to limitation under section 19(2) of the Ain is complied with, the Adalat has no scope to allow the said application, irrespective of the fact that the defendant deposited 10% of the decretal dues.
 
In view of the above discussions, we have no hesitation to hold that the Adalat passed the impugned order dated 15.07.2008 without satisfying itself as to requirement of section 19(2) of the Ain and as such, it warrants interference of this Court. Thus, we find merit in part of the Rule.
By the order dated 04.03.2009 passed in Artha Rin Suit No. 174 of 2006, the Adalat rejected petitioner’s misconceived application on point of maintainability as it was filed under section 57 of the Ain for setting aside the order dated 15.07.2008. This order dated 04.03.2009 being rejected on maintainability, has no effect over the main issue of this Rule and as such, it is not necessary to give any decision on this issue.
 
In the result, the Rule is made absolute in part without any order as to costs.  The impugned order dated 15.07.2008 passed by the Artha Rin Adalat No.3, Dhaka in Miscellaneous Case No. 668 of 2008 is hereby declared to have been passed without lawful authority and is of no legal effect. The Adalat is directed to dispose of the Miscellaneous Case No. 668 of 2008 in the light of the observation as made above.

Communicate the judgment and order to the respondent Nos. 1 and 2 expeditiously for taking necessary steps as per observations of the judgment.

Ed.