Salahuddin and others Vs. Government of Bangladesh and others 2016 (2) LNJ 42

Case No: Writ Petition No. 12605 of 2012

Judge: Muhammad Khurshid Alam Sarkar,

Court: High Court Division,,

Advocate: Mr. Ahsanul Karim,Mr. Khalequzzaman,Mr. Kabir Iqbal Hossain,,

Citation: 2016 (2) LNJ 42

Case Year: 2016

Appellant: Salahuddin and others

Respondent: Government of Bangladesh and others

Subject: Artha Rin,

Delivery Date: 2015-05-31

Salahuddin and others Vs. Government of Bangladesh and others 2016 (2) LNJ 42
 
HIGH COURT DIVISION
(SPECIAL ORIGINAL JURISDICTION)
Md. Emdadul Huq, J
And
Muhammad Khurshid Alam Sarkar, J
Judgment on
31.05.2015
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Salahuddin and others
. . . Petitioners
-Versus-
Government of Bangladesh and others
. . . Respondents
 

Artha Rin Adalat Ain (VIII of 2003)
Section 33
Computation of 15 days in between the date of publication of auction notice and the date of holding the auction-From a plain reading of the provisions of Section 33(1) of the Ain, 2003, it is crystal clear that there should be a gap of 15 (fifteen) days’ time between the date of publication of the auction notice and the date of holding the auction. Since the above provision does not provide any consequence for non-compliance of the time-frame, its deviation is not to be considered to be too fatal to vitiate an execution process. All that the law contemplated is that there should be sufficient publicity of the proposed auction so that the maximum number of bidders could be invited for attending the auction. As per the dictum laid down in the case of Md. Rafiqul Islam Faruq Vs Bangladesh VIII ADC 439 that the date of publication of the notice as well as the date of holding the auction, both are to be included in computation of the 15 (fifteen) days’ time-frame.             . . .(16)
Artha Rin Adalat Ain (VIII of 2003)
Sections 15, 33(1) and 48
The language employed in Section 48 of the Ain, 2003, ‘for computation of the days under this law’ (এই আইনের অধীন দিবস গণনার ক্ষেএে) and thereby generalising the method of counting the time-frame with reference to the judges’ working days does not fit in the functional aspect of the trial of a case which requires compliance by others also e.g. process server, nazarate, parties etc. If the ratio of the case of Md Rafiqul Islam Faruq Vs Government of Bangladesh reported in VIII ADC 439 is read in conjunction with the ratio laid down in the case of Peninsular Shipping Service Vs. Faruq paints 59 DLR (AD) 26, the inevitable conclusion at which anyone is led to arrive is that 15 (fifteen) days time, as provided in Section 33(1) of the Ain, 2003 means only 15 (fifteen) days, as opposed to 15 (working) days.                      . . . (21-23)
 
Artha Rin Adalat Ain (VIII of 2003)
Section 41
The petitioners approached this Court by filing the instant writ petition, instead of preferring appeal. Their such move appears to us to be a tactic with an ulterior motive of avoiding the requirement of making 50% deposit of the decretal amount coupled with their intention of dragging this case for whatever the period it might take for disposal of this writ petition. Thus, we find that after pronouncement of the judgment and decree on 23.02.2011 by the Adalat in Artha Rin Case no. 119 of 2010,  invocation of the writ jurisdiction by the petitioners by circumventing  the statutory route of appeal is a mere device to dilly-dally the process of execution in an attempt to frustrate the Ain, 2003.               . . . (27)
Artha Rin Adalat Ain (VIII of 2003)
Section 57
This case appears to be a fit case for slapping costs upon the petitioner given the manner and style of handling this case by the loanee and these three petitioners, who are persistently trying to delay the disposal of the execution case by abusing the process of the Court. In the result, the Rule is discharged with a cost of Taka 10,000/- (Ten Thousand) to be paid by the petitioners in the national exchequer by way of submitting Treasury Challan within 30 (thirty) days.                        . . . (40 and 41)
Md. Rafiqul Islam Faruq Vs. Bangladesh, VIII ADC 439; Peninsular Shipping Service Vs. Faruq Paint, 59 DLR (AD) 26; Sonali Bank Ltd. Vs. Asha Tex International, 20 BLC 185; M/S International Trade Promoters Vs. Artharin Adalat, 17 BLT (AD) 306; Harun-or-Rashid (Md) Vs. Pubali Bank Ltd., 12 MLR (AD) 343; Hosne Ara Begum Vs. Islami Bank Bangladesh Ltd., 5 MLR (AD) 290; Islami Bank Bangladesh Ltd., 5 MLR (AD) 191 and Concord Pragatee Consortium Ltd., Vs. BPDB, 66 DLR 475 ref.

Writ Petition No. 12605 of 2012


Mr. Khalequzzaman Masud, Advocate 
. . . For the petitioners
Mr. Ahsanul Karim with
Mr. Kabir Iqbal Hossain, Advocates
....For respondent No. 3
 
JUDGMENT
Muhammad Khurshid Alam Sarkar, J:
By filing an application under Article 102 of the Constitution, the writ petitioners sought to challenge the legality and propriety of the order no. 14 dated 18.09.2012 passed by the learned Judge of the Third Artha Rin Adalat, Dhaka (hereinafter referred to as ‘the Adalat’) accepting the offer of respondent no. 7 as the highest bidder for the mortgaged property in Artha Jari Case no. 234 of 2011 arising out of Artha Rin Case no. 119 of 2010. 
  1. Briefly, the facts of the case, as stated in this writ petition, are that, the proprietor of M/s. Dhaka Pharmacy Limited, Md. Sharif (hereinafter referred to as respondent no. 6 or ‘the loanee’) availed a loan of Tk. 15,00,000/- (fifteen lac) from the IFIC Bank Limited (hereinafter referred to as ‘the IFIC Bank’) upon mortgaging a property, which is owned by these three writ petitioners and sold in the auction in question. On failure of the loanee to repay the said loan, the IFIC Bank instituted Artha Rin suit no. 119 of 2010 in the Adalat on 30.06.2010 against these three writ petitioners together with respondent nos. 4-6 for realization of the said loan and, eventually, an exparte judgment and decree was passed on 23.02.2011 for an amount of Tk. 16,44,707.54 along with  specified interest to be paid till the period of realization of the decretal amount. Thereafter, on 03.08.2011 the decree-holder (the IFIC Bank) filed Artha Jari Case no. 234 of 2011and an auction notice was published on 04.09.2012 in the Daily Protham Alo fixing 18.09.2012 for auction of the property. On 21.08.2011, the loanee filed an application with a prayer to allow three months time to adjust the decretal amount, but it was rejected by the Adalat. The auction was held on the said scheduled date and respondent no. 7 became the highest bidder with an offer of 61,00,000/- (sixty one lac) Taka and the Adalat accepted the same. Thereafter, on 24.09.2012 the present petitioners filed an application before the Adalat for withholding the auction process with a prayer to grant an opportunity to sell the property by themselves towards payment of the decretal amount, instead of selling out the mortgaged property through auction. On the same date the loanee also filed an application with a prayer to set aside the auction and allow one year time to adjust the decretal amount. However, the Adalat upon consideration of the statements and prayers of both the applications, rejected the same, against which the petitioner moved before this Court and obtained the instant Rule.
  2. The IFIC Bank, which has been impleaded as respondent no. 3 in this case, contested the Rule by filing an affidavit-in-opposition contending, inter-alia, that on 03.08.2011the execution case was commenced by serving notices upon the loanee, the guarantor (loanee’s wife) and the petitioners (mortgagors) and, thereafter, on 21.08.2011 the loanee and his wife appeared before the Adalat with a prayer for 3 (three) months’ time in order to allow them to settle the claim amicably when the application was rejected. Thereafter, the loanee and the mortgagors did not take any step to pay the decretal amount, nor did they communicate with the bank and, eventually, the bank proceeded with the auction and, finally, the auction was held after nearly one year on 18.09.2012. It is contended that no illegality was committed in the execution process.
  3. Mr. Md. Khalequezzaman Masud, the learned Advocate appearing for the petitioner, places before us Section 33(1) of the Artha Rin Adalat Ain, 2003 (hereinafter referred to as ‘the Ain, 2003’) and submits that the Adalat committed serious illegality by not complying with the said provisions in proceeding with the execution case inasmuch as the auction notice was published on 04.09.2012 and the auction was held on 18.09.2012 and, accordingly, it is his submission that the mandatory provisions of the Ain, 2003, as to giving at least 15 days’ time in between the date of publication of the auction notice and the date of auction sale, has been contravened. In an endeavour to reinforce his submission on this point, the learned Advocate places Section 48 of the Ain, 2003 before us and submits that in computing the 15 days’ time under the provisions of  Section 33(1) of the Ain, 2003, only the working days shall be counted and he, accordingly, argues that since it is evident that the date of publication of the auction notice is 04.09.2012 and the date of holding the auction was 18.09.2012, if two weekly holidays of 4 (four) days are deducted, in no way it becomes 15 (fifteen) days. He next submits that the property was sold at a shockingly low price at an amount of Tk. 61,00,000/- (sixty one lacs) as he claims that the market price of  the property is Tk.1.80 crore.
  4. On the issue of maintainability of this writ petition, the learned Advocate for the petitioner places before us the case of M/s. International Trade Promotors Vs. Artha Rin Adalat no. 1, Dhaka & others, 17 BLT (AD) 306; Harun-or-Rashid Vs. Pubali Bank Limited and others, 12 MLR (AD) 343; Islami Bank Bangladesh Limited Vs. Alhaj Md. Shafiuddin Howlader and another reported in 5 MLR (AD) 191, and the case of Hosne Ara Begum and another Vs Islami Bank Bangladesh Ltd, 5 MLR (AD) 290 and submits that since the order is ex-facie illegal, this Court is well empowered to entertain the present writ petition. On the point of maintainability of this writ petition, his concluding submission is that since the petitioners’ property is being taken away in breach of the provisions of law, the petitioners are competent to approach this Court to enforce their fundamental rights.
  5. By making the aforesaid submissions, the learned Advocate for the petitioners prays for making the Rule absolute.        
  6. Per contra, Mr. Ahasanul Karim, the learned Advocate appearing on behalf of the IFIC Bank, takes us through the order sheet of the Artha Jari Case no. 234 of 2011 and by specifically pin-pointing the order no. 02 dated 21.08.2011 in tandem with order no. 14 dated 18.09.2012 submits that the loanee and his wife appeared before the Adalat on 21.08.2011 and prayed for 3 months time for allowing them to pay the decretal amount and, thereafter, the auction was held on 18.09.2012 after allowing the loanee nearly one year, which is more than the time they had sought for arranging the sale of the mortgaged property privately. In elaborating his submission on this issue, he argues that within the aforesaid one year time, the loanee as well as the petitioners had the opportunity to settle the claim with the bank amicably, but they did not take any step towards settling the claim.
  7. With regard to the contention that the auction was held before completion of 15 working days as provided in Section 33(1) of the Ain, 2003, Mr. Karim refers to the case of Md. Rafiqul Islam Faruq Vs. Government of Bangladesh VIII ADC 439 and submits that the date of publication of auction notice on 04.09.2012 as well as the date of holding the auction are to be included within the said 15 (fifteen) days period of limitation, as stipulated in Section 33(1) of the Ain, 2003 and, thus, there was no deviation or contravention of any provisions of law.
  8. Regarding the petitioner side’s submission that the statutory period of 15 days should be counted upon excluding the weekly holidays and only the working days are to be computed, Mr. Karim refers to the case of Peninsular Shipping Service Vs. Faruq paint 59 DLR (AD) 26 and submits that provisions of Section 48 are applicable only for the purpose of counting the days in connection with trial of Artha Rin Cases, and not with execution cases. 
  9. As to the issue of maintainability of the present writ petition, Mr.  Karim refers to a recent decision of a Division Bench of the High Court Division namely Sonali Bank Limited Vs Asha Tex International 20 BLC 185 and submits that all the post-decree stage orders are to be challenged by way of appeal by depositing 50% of the decretal amount, otherwise the provisions of the Ain, 2003 as a special law will be frustrated. The petitioners’ motive, he continues to submit, of dilly-dallying the execution process is clearly demonstrated and manifested from invocation of the writ jurisdiction purposefully and, also, from their conduct that after obtaining the stay order from this Court, they opted to kill further time.
  10. In concluding his deliberations, he submits that grievance of the petitioners as to non-compliance of the provisions of Section 33(1) of the Ain is a mere device to halt the process of execution case. He submits that had this question been brought to the notice of the Adalat, the Bank might have agreed to call for a fresh auction and, thereby, proceeded towards an early disposal of the execution case. He frankly submits that all that the Bank expects is that the Artha Jari Case should be disposed of at the earliest possible time, either by making the present Rule absolute or by asking the Adalat for arranging fresh auction.
  11. The added respondent no. 7 is the highest bidder and filed a Vokalatnama, but thereafter abstained from appearing before this Court. It is to be noted here that the petitioners, by filing a supplementary-affidavit, have alleged that the highest bidder is an Advocate by profession and is a practitioner of the concerned Artharin Adalat no. 3, Dhaka and, as an officer of the Court, he was not eligible to participate in the auction in question.           
  12. In adjudication of this case, we have allowed both the sides to make their submissions at length and, side by side, we have also perused the writ petition together with its annexures, affidavit-in-opposition and gone through the relevant laws and decisions placed before us very minutely.
  13. It appears that the core issues to be adjudicated upon by this Court are whether the Adalat has committed any illegality in selling out the mortgaged property by auction in the backdrop of the petitioners’ prayer for withholding the said auction, and also the issue of maintainability of the present writ petition, as raised by the learned Advocate for respondent no. 3. 
  14. It is an admitted position that the auction notice was published on 03.08.2011 and the auction was held on 21.08.2011. It is the case of the petitioners that if the days are computed from the date of publication of the auction notice, from a simple calculation of the days, any one with ordinary prudence would come to a conclusion that only 13 days time has been given for selling the property on auction. In order to deal with the point, we should look at the provision of Section 33(1) of the Ain, 2003 which runs as follows:
৩৩z (১) অর্থ ঋণ আদালত ডিএ্রী বা আদেশ জারীর সময় কোন সম্পওি বিএ্রয়ের ক্ষেএে বাদীর খরচে বিজ্ঞপ্তি প্রচারের তারিখ  হইতে অন্যূন ১৫ (পনের) দিবসের সময় দিয়া সীলমোহরকৃত টেন্ডার আহবান করিবে, উও্র বিজ্ঞপ্তি কমপক্ষে বহুল প্রচারিত একটি বাংলা জাতীয় ~~দনিক পএিকায়, তদুপরি ন্যায় বিচারের স্বার্থে প্রয়োজন মনে করিলে Öহানীয় একটি পএিকায়, যদি থাকে, প্রকাশ করিবে; এবং আদালতের নোটিশ বোর্ডে লটকাইয়া ও Öহানীয় ভাবে ঢোল সহরত যোগেও উও্র বিজ·প্তি প্রচার করিবেz
  1. From a plain reading of the above provisions, it is crystal clear that there should be a gap of 15 (fifteen) days’ time between the date of publication of the auction notice and the date of holding the auction. Since the above provision does not provide any consequence for non-compliance of the time-frame, its deviation is not to be considered to be too fatal to vitiate an execution process. All that the law contemplated is that there should be sufficient publicity of the proposed auction so that the maximum number of bidders could be invited for attending the auction. However, by applying the dictum laid down in the case of Md. Rafiqul Islam Faruq Vs Bangladesh, VIII ADC 439 that the date of publication of the notice as well as the date of holding the auction, both are to be included in computation of the 15 (fifteen) days’ time-frame, the calculation of days comes to clear 15 (fifteen) days. Thus, we do not find any substance in the submission of the learned Advocate for the petitioner that the provisions of Section 33(1) of the Ain, 2003 have been infringed.
  2. Now, let us deal with the other count of submissions of the petitioners’ Advocate with reference to the provisions of Section 48 of the Ain, 2003, which according to him, requires 19 days time to be allowed by the Adalat, because another 4 days should be added with this 15 days by virtue of two weekly holidays for each week. For this, it would be profitable to look at the provisions of Section 48 of the Ain, 2003 which is reproduced below:
৪৮z এই আইনের অধীন দিবস গণনার ক্ষে­Î ‡KejgvÎwePvi‡Ki Kvh©w`em MYbv Kiv nB‡e Ges mvgwqKfv‡e `vwqZ¡cÖvß wePvi‡Ki Kvh© w`emI Aনু গণনার অ¿¹র্ভূও্র হইবেz (underlined by us)
  1. The above provisions usher a paradoxical proposition. Although it contains the words “এই আইনের অধীন দিবস গণনার ক্ষে­Î”; meaning in computation of the time under the provisions of this law, the expressions, “কেবলমাÎ বিচারকের কার্যদিবস গণনা করা হইবে এবং সাময়িকভাবে দায়িত্বপ্রাপ্ত বিচারকের কার্য দিবসও অbyiƒc MYbvi Aš—©f~³ nB‡e” makes the mode of computation of the days complicated.
  2. Upon skimming through the entire Ain, 2003, we find that most of the provisions containing the time-frame to be followed at various stages of the suit have got no nexus with the ‘working days of the judge’ (বিচারকের কার্য দিবস). For example the time period spelt out in Section 7 of the Ain, 2003 is regarding service of notices, the time-frame prescribed in Sections 10 & 11 of the said Ain, 2003 is with regard to  submissions of the Written Statement or Additional Written Statement, Section 16 of the Ain, 2003 prescribes the time-frame for pronouncement of judgment, Section 19  of the said Ain, 2003 provides limitation of time for filing application for setting aside the exparte decree, Section 22(5) & (6) of the Ain, 2003 provides time-frame for dealing with mediation,  time limitation for filing execution case is given in Section 28 of the said Ain, 2003, time limitation for service of notice of execution is prescribed in Section  30 of the same law, time limit provided in Section 32 of the Ain, 2003 is for raising objection against execution case by the third parties, time-frame for auction  is outlined in Section 33 of the Ain, 2003, period of civil detention  has been provided in  Section 34 of the Ain, 2003, time limitation for preferring appeal is provided in Section 41 of the Ain, 2003. These provisions of time-frame under the Ain, 2003 are least connected with the working days of the judges, because in complying with those provisions the judge has very little to do except ensuring compliance by other functioneries.
  3. Only the four provisions of the Ain, 2003, namely Sections 17, outlining the time frame for disposal of the Artharin Cases, Section 37, where time-frame is provided for disposal of Execution Cases, Section 41(6) which prescribes the time-frame for disposal of appeals and the time-frame for disposal of revision prescribed in Section 42(3) are directly connected with the working days of the judge (বিচারকের কার্যদিবস).
  4. Therefore, the language employed in Section 48 of the Ain, 2003, ‘for computation of the days under this law’ (এই আইনের অধীন দিবস গণনার ক্ষেএে) and thereby generalising the method of counting the time-frame with reference to the judges’ working days does not fit in the functional aspect of the trial of a case which requires compliance by others also e.g. process server, nazarate, parties etc. 
  5. In the case of Peninsular Shipping Service Vs. Faruq Paint 59 DLR (AD) 26, the Apex Court, in an effort to make the said provisions of Section 48 of the Ain, 2003 workable, upon examining the provisions of the said Section 48 in detail propounded as follows:
“----the provision in Section 48 of the Ain, 2003 is limited only to count the time for disposal of cases having no connection whatsoever with the period prescribed for filing appeal, nay of making deposit as required under section 41 of the Ain. The position shall be more clear if we read sections 45 to 46, prescribing various period as to filing/disposal of case in the aforesaid separate chapter i.e. Chapter VIII. In view of what has been stated above, we are of the view that, acceptance of the argument of the respondents that Section 48 is applicable in case of filing the appeal shall lead to a dangerous effect telling upon the legal jurisprudence of the country and such a view is therefore unwarranted”.
  1. Upon applying the ratio of the case of Md Rafiqul Islam Faruq Vs Government of Bangladesh reported in VIII ADC 439 in conjunction with the ratio laid down in the case of Peninsular Shipping Service Vs. Faruq paint 59 DLR (AD) 26  in the present case, the inevitable conclusion at which we are led to arrive is that 15 (fifteen) days time, as provided in Section 33(1) of the Ain, 2003, was complied with and, thus, there is no illegality in the execution process of Artharin Jari Case no. 234 of 2011.  Accordingly, we hold that the impugned order dated 18.09.2012 passed by Artha Rin Adalat is fundamentally consistent with the statutory requirement.
  2. Now, the question that comes up for consideration is whether the petitioners were competent to invoke the forum under Article 102 of the Constitution in the backdrop of operation of the provisions of Section 41 of the Ain, 2003. In order to examine the said issue, let us look at the provisions of Section 41 of the Ain, 2003, which are reproduced below:
৪১z (১) মামলার কোন পক্ষ, কোন অর্থ ঋণ আদালতের আদেশ বা ডিএ্রী দ্বারা সংক্ষুন্ড হইলে, যদি ডিএ্রীকৃত টাকার পরিমান ৫০(পথ·াশ) লক্ষ ঢ~াকা অপেক্ষা অধিক হয়, তাহা হইলে উপ-ধারা (২) এর বিধান সাপেক্ষে, পরবর্তী ৬০ (ষাট) দিবসের মধ্যে হাইকোর্ট বিভাগে, এবং যদি ডিএ্রিকৃত টাকার পরিমান ৫০ (পথ·াশ) লক্ষ ঢ~াকা অথবা তদঅপেক্ষা কম হয়, তাহা হইলে পরবর্তী ৩০ (এিশ) দিবসের মধ্যে জেলা জজ আদালতে আপীল করিতে পারিবেনz
(২) আপীলকারী, ডিএ্রীত্র্রত টাকার পরিমাণের ৫০% এর সমপরিমান টাকা বাদীর দাবীর আংশিক স্বীকৃতিস্বর্রপ নগদ ডিএ্রীদার আর্থিক প্রতিষ্ঠিানে, অথবা বাদীর দাবী স্বীকার না করিলে, জামানত সর্রপ ডিএ্রী প্রদানকারী আদালতে জমা করিয়া উও্রর্রপ জমান প্রমাণ দরখাস¹ বা আপীলের মেমোর  সহিত আদালতে দাখিল না করিলে, উপ-ধারা (১) এর অধীন কোন আপীল কার্যার্থে গৃহীত হইবে নাz
  1. Section 41 of the Ain, 2003 in an unambiguous term provides that if any party to the Artharin Case is aggrieved by an order or decree (“মামলার কোন পক্ষ, কোন অর্থঋণ অাদালতের  আদেশ বা ডিএ্রি দ্বারা সংক্ষুব্দ হইলে”), he may prefer an appeal upon depositing the 50% of the decretal amount.
  2. Here in the case at hand, the petitioners have challenged the ‘order’ (Av‡`k) passed by the Adalat and, in line with the ratio laid down in the case of Sonali Bank Ltd Vs Asha Tex International 20 BLC 185, we hold that the impugned order being a post-decree one, the only path available for the petitioners is preferring an appeal before the competent Court. When a defendant of the Artharin suit wishes to challenge an order before pronouncement of the decree, he may be allowed to invoke the writ jurisdiction, for, he is unable to pay 50% of the decretal amount inasmuch as until a decree is drawn, he is not in a position to make an assessment of depositing the amount of 50% of the decretal amount. But after passing the decree, which is the fact in this case, an aggrieved defendant does not have any option other than preferring an appeal by depositing 50% of the decretal amount.
  3. Here, the petitioners approached this Court by filing the instant writ petition, instead of preferring appeal. Their such move appears to us to be a tactic with an ulterior motive of avoiding the requirement of making 50% deposit of the decretal amount coupled with their intention of dragging this case for whatever the period it might take for disposal of this writ petition. Thus, we find that after pronouncement of the judgment and decree on 23.02.2011 by the Adalat in Artha Rin Case no. 119 of 2010,  invocation of the writ jurisdiction by the petitioners by circumventing  the statutory route of appeal is a mere device to dilly-dally the process of execution in an attempt to frustrate the Ain, 2003.
  4. In the case at hand, the execution case was registered on 03.08.2011 and, thereafter, the notices were duly served upon the loanee and the other judgment-debtors namely, his wife, who is a party to the suit as the guarantor, and the present three petitioners as the mortgagors. Then, the loanee on 21.08.2011 appeared before the Adalat with a prayer for allowing him 3 (three) months time to enable him to settle the matter amicably. Although, the said prayer was rejected by the Adalat, the loanee and the petitioners had ample time in their hands to settle the matter with the bank in view of the fact that the auction was held on 18.09.2012, which is after a lapse of one year time from the date of the judgment-debtor’s prayer for giving an opportunity for amicable settlement. Thus, it is evident that the time, which was sought for by the loanee, initially for 3 (three) months and subsequently for one year, for amicable settlement towards adjustment of the decretal amount, has been enjoyed by the all the judgment-debtors, including these three petitioners, nevertheless, they failed to adjust the decretal amount. Although these 3 (three) petitioners have taken a plea that they were not aware of the auction notice, however, in the backdrop of the order recorded on 21.08.2011 by the Adalat that the notices were duly served upon all the parties, the plea taken by them appears to be implausible. Moreover, their appearance before the Adalat on 24.09.2012, being just after 5 (five) days of the holding of auction of the property on 18.09.2012, suggests that they had knowledge about the execution case and were in touch with the loanee who, after commencing the Execution Case, at first unsuccessfully sought for three months’ time and again on the 24.09.2012, concurrently with these three petitioners, prayed for one year time.
  5. Even for the sake of argument, if it is considered that these 3 (three) petitioners were not aware of auction sale, however, after filing this writ petition on 01.03.2009 and upon obtaining an order of stay on the execution process, the petitioners could have taken necessary steps for adjustment of the decretal amount, but in the last more than 6 (six) years, they not only refrained from settlement of the claim with the IFIC Bank, they also did not bother to have this matter heard. Thus, from the conduct of these three petitioners, it is very much apparent that the only purpose of these three petitioners is to linger on the execution of the decree and thereby to abstain from making the payment towards the adjustment of the decretal amount. 
  6. The above conduct of the petitioners is further reflected at the hearing stage of this case. Order sheet shows that this matter was fixed at the instance of respondent no. 3, the IFIC Bank. When the matter was posted in the Cause List under the heading of “For Hearing” on consecutive days with the names of the learned Advocate for the petitioners, neither the petitioners nor their engaged Advocate appeared before this Court. It is only when the matter was taken up for passing the necessary orders due to non-appearance of the petitioners, the learned Advocate for these 3 (three) petitioners appeared before this Court and expressed their desire to conduct the hearing of this Rule and, accordingly, hearing took place.
  7. The learned Advocate has referred to some case laws in support of his submission that an aggrieved party in a Artharin Case is well competent to invoke the writ jurisdiction. These cases are discussed below. 
  8. In the case of M/S International Trade Promoters Vs Artharin Adalat 17 BLT (AD) 306, the mortgagor approached the writ Court when the Adalat sold the mortgaged property being a 5 storied building on 5 (five) Kathas land, situated at Indira Road, Dhaka, at a shockingly low price of 35 lacs only, the High Court Division disposed of the writ petition with a direction upon the Adalat to review its own order on auction sale by setting aside the same towards holding a fresh auction and refund the auction purchaser’s money with a compensation of 12% interest to be paid by the petitioners. Challenging the aforesaid order of the High Court Division, the auction purchaser when moved the Appellate Division, the order of the High Court Division was upheld. In this cited case, none of the sides had raised the question of maintainability of the writ petition and, thus, there was no examination of the said issue therein. Moreover, the petitioners of this case did not make out a case of selling out their property at a shockingly low price.
  9. In the case of Harun-or-Rashid (Md) Vs Pubali Bank Ltd 12 MLR (AD) 343, when the writ petitioner challenged an interlocutory order of the Adalat at pre-decree stage, the High Court Division summarily rejected the writ petition on the ground that since there is bar to prefer an appeal against an interlocutory order, only revision under Section 115 of the Civil Procedure Code (CPC) could be filed. The Apex Court held that since there is no forum before passing the decree, a party aggrieved by any pre-decree stage order of the Adalat is competent to invoke Article 102 of the Constitution. In the case in our hand, we have taken the same view that while writ is the proper forum against an interlocutory order passed at pre-decree-stage, however, an appeal must be preferred against any order passed by the Adalat at post-decree phase.
  10. In the case of Hosne Ara Begum Vs Islami Bank Bangladesh Ltd 5 MLR (AD) 290 the question as to whether revision lies against an interlocutory order was settled by the Appellate Division in negative. In the said case, the date was fixed for judgment but the defendant wanted to recall the PW1 and the prayer was allowed fixing a date for further hearing.
  11. In the case of Islami Bank Bangladesh Ltd 5 MLR (AD) 191, when the bank’s application for restoration of the suit under Order 9, rule 9 of the CPC was allowed, the defendant challenged the order in the High Court Division invoking its revisional jurisdiction under Section 115 of the CPC. In this cited case, no issue was raised as to the maintainability of the application filed by the Bank for restoration and, thus, the Apex Court, for ends of justice, held that the order of restoration of the suit by the Adalat is an equitable one. Thus, the ratio of this case is not inconsistent with our view, for, we are also disposing of the Rule for ends of justice by which no party to the suit would adversely be affected. In fact, had we been of the view that the writ petitioners shall have to prefer appeal, they had to encounter two hurdles namely, depositing of 50% of the decretal amount and, secondly, they are out of time to prefer an appeal.
  12. From the above discussions on the afore-cited case laws referred to by the learned Advocate for the petitioners, it appears that the ratio laid down therein are not applicable in this case.
  13. Adjudication of the instant Rule, however, would remain incomplete, if we become oblivious of the last count of submission of the learned Advocate for the petitioners on the maintainability issue. In a bid to fit in this writ petition within the purview of article 102 of the Constitution, it was submitted by the petitioners’ learned Advocate that since the petitioners are complaining before this Court as to violation of their fundamental right under Article 42 of the Constitution, the present writ petition is very much maintainable.
  14. In this connection, this Court’s consistent view is that the said fundamental right is a qualified right, which may be enforced only subject to limitations imposed by laws. This point has been elaborately discussed and examined in the recent case of Concord Pragatee Consortium Ltd Vs BPDB 66 DLR 475. Since the Ain, 2003 empowers the bank to sell the mortgaged property for realization of their loan, the submission appears to us to be without any substance. 
  15. It leads us to hold that the present writ petition is not maintainable for bypassing the forum provided in a special statute, namely Artharin Adalat Ain, 2003. Thus, the instant Rule is liable to be discharged on maintainability ground as well.
  16. This case appears to be a fit case for slapping costs upon the petitioner given the manner and style of handling this case by the loanee and these three petitioners, who are persistently trying to delay the disposal of the execution case by abusing the process of the Court, as discussed hereinbefore. 
  17. In the result, the Rule is discharged with a cost of Taka 10,000/- (Ten Thousand) to be paid by the petitioners in the national exchequer by way of submitting Treasury Challan within 30 (thirty) days. The order of stay granted at the time of issuance of the Rule is hereby vacated.
  18. The Artha Rin Adalat is directed to ensure the compliance of the above direction with regard to deposit of the above cost by the petitioner.
  19. The Artha Rin Adalat shall dispose of the Artha Jari case in question expeditiously without allowing any undue adjournment.
  20. Office is directed to communicate this order to Artharin Adalat, Dhaka, 3 at once.
The office is further directed to send a copy of this judgment and order to the Law Commission of Bangladesh for its perusal so as to let them consider whether in the provision of Sections 15 of the Ain, 2003, the following type of words নিলাম নোটিশ প্রকাশের দিন এবং নিলাম অনুসঠানের দিন সহ পনের দিন” should be explicitly incorporated in the backdrop of judicial pronouncement by the Apex Court in the case of Peninsular Shipping Service Vs. Faruq paint 59 DLR (AD) 26 that in counting the 15 (fifteen) days’ time-frame, whether both the above-mentioned days are to be included and, also, to see whether the provisions of Section 48 of the said Ain, 2003 require to be expressed in a clearer manner.
Ed.