Pubali Bank Ltd. Vs. Abdul Jalil Bhuiyan, 53 DLR (2001) 217

Case No: Civil Revision No. 4338 of 1997

Judge: Gour Gopal Saha,

Court: High Court Division,,

Advocate: MA Tariq,,

Citation: 53 DLR (2001) 217

Case Year: 2001

Appellant: Pubali Bank Ltd.

Respondent: Abdul Jalil Bhuiyan

Subject: Civil Law,

Delivery Date: 2000-11-15

Supreme Court
High Court Division
(Civil Revisional Jurisdiction)
 
Present:
Gour Gopal Saha J
Sikder Maqbul Huq J
 
Pubali Bank Ltd.
………………Petitioner
Vs.
Abdul Jalil Bhuiyan
…….………. Opposite Party
 
Judgment
November 15, 2000.
 
Code of Civil Procedure (V of 1908)
Sections 115 & 151
Whenever a party is aggrieved due to the fault of the court occasioning failure of justice, this court is not only competent to undo the wrong done to a party but also it is imperative in the interest of justice to do so.
 
Case Referred To-
Kazi Gowherul Islam Vs. Standard Co-operative Society Limited and another 50 DLR 333.
 
Lawyers Involved:
MA Tariq, Advocate — For the Petitioner
Not represented—the Opposite Party.
 
Civil Revision No.4338 of 1997.
 
JUDGMENT
 
Gour Gopal Saha J.
 
1.  This Rule is directed against the order dated 18-9-97 passed by the Subordinate Judge and Artha Rin Adalat, 2nd Court Madaripur in Money Execution Case No.25 of 1994 waiving 60% of the interest and allowing payment of the balance of the decretal dues by instilments.
 
2. Short facts relevant for the purpose of the Case are that, the petitioner Bank as plaintiff instituted a suit in the court of the Artha Rin Adalat and Subordinate Judge, 2nd Court Madaripur being Money Suit No. 83 of 1991, for realisation of an amount of Taka 13,23,315.09 as outstanding dues as on 28-3-91. During the pendency of the suit the defendant paid the plaintiff Bank an amount of Taka 4,00,000.00 in respect of the claims of the Bank. Eventually the defendant opposite party did not appear before the Artha Rin Adalat to contest the suit. The suit was ultimately decreed ex-parte on 23-3-93 for an amount of Taka 9,23,315.09 as on 28-3-91, with interest on the decretal amount at the rate of 16% per annum, Subsequently, the petitioner-decree holder levied Money Execution Case No.25 of 1994 in the court of the Subordinate Judge, 2nd Court and Artha Rin Adalat, Madaripur for realisation of the decretal dues along with the accrued interest thereon till realisation. It is found that the judgment debtor opposite party in all paid an amount of Taka 9,000.00 to the plaintiff bank against the decretal amount.
 
3. The learned execution court by its order dated 15-10-96 directed the judgment debtor opposite party to deposit the balance of the outstanding decretal dues by 12 equal monthly instilments of Taka 76,943.00 each but the opposite party failed to comply with the order of the court. Thereafter the judgment debtor opposite party prayed for extension of time for satisfying the decretal dues. Thereupon the learned Execution Court by order dated 10-4-97 directed the judgment debtor opposite party to pay the balance of the decretal dues amounting to Taka 8,33,315.09 in 7 equal monthly instilments of Taka 1,19,045.09 each. Subsequently, the learned execution court by order dated 18-9-97 modified the aforesaid order dated 10-4-97 and suo motu exempted 60% of the interest on ‘the principal amount to be paid by 6 equal instilments.
 
4. Being aggrieved by the aforesaid impugned order dated 18-9-99 passed by the learned execution court, the decree holder plaintiff bank moved this court and obtained the present Rule.
 
5. Mr. MA Tariq, the learned Advocate appearing for the petitioner, submits that the learned execution court evidently erred in law going beyond the decree by exempting 60% of the interest on the principal amount and by granting instilments much beyond the prescribed time and the same has occasioned failure of justice.
 
6. No one appears to oppose the Rule.
 
7. The learned Advocate appearing for the petitioner has placed before us the impugned order and the relevant provisions of the Artha Rin Adalat Rin, 1990. In the facts of the case, we clearly find that the learned execution Court went beyond the decree by exempting 60% of the interest payable on the principal amount. We also find that the Learned Execution Court, clearly violated the provision of the Artha Rin Adalat by giving time to the judgment debtor for satisfaction of the decretal dues by installments extending over a period of one year. We are, therefore satisfied that the learned execution court, acted illegally and without jurisdiction in passing the impugned order occasioning failure of justice.
 
8. We are not unmindful of the consistent view held by this Court that an application under section 115(i) of the Code of Civil Procedure is not maintainable against any order passed by the Artha Rin Adalat. But in view of the fact that the learned Execution Court acted illegally and without jurisdiction in passing the impugned order, occasioning a grave failure of justice this Court is competent to give the deserved relief to the aggrieved party in the interest of justice in exercise of the its inherent power for preventing an abuse of the process of the Court and for securing the ends of justice. We get instant support of this view in the case of Kazi Gowherul Islam Vs. Standard Co-operative Society Limited and another reported in 50 DLR 333.
 
9. Section 151 of the Code of Civil Procedure provides that nothing in the Code shall be deemed to limit or otherwise affect the inherent power of the Court to make such order as may be necessary for the ends of justice or to prevent an abuse of the process of the Court. Whenever a party is aggrieved due to the fault of the Court occasioning failure of justice, this Court is not only competent to undo the wrong done to a party but also it is imperative in the interest of justice to do so. In view of the fact that the impugned order is found to be patently illegal and wit jurisdiction, causing serious prejudice to the petitioner, we think, this is a fit case in which we should exercise the inherent power of the court under section 151 of the Code of Civil Procedure for preventing an abuse of the process of the court and an apparent injustice.
 
10. In the result the Rule is made absolute without any order as to costs and the impugned order dated 18-9-97 passed by the learned Subordinate Judge and Artha Rin Adalat, 2nd Court, Madaripur in Money Execution Case No. 25 of is set aside.
 
11. The order staying all further proceedings of money executing Case No.25 of 1994 pending before the Artha Rin Adalat and Sub ordinate Judge, Madaripur earlier granted by this Court stands vacated.
 
12. The learned Subordinate Judge and execution Court Madaripur is hereby directed to dispose of the execution Case with utmost expediency.
 
Communicate the order of the court to the learned execution court at once.
 
Ed.