Suraya Akhter Vs. Bangladesh and others, 3 LNJ (2014) 661

Case No: Writ Petition No. 10760 of 2012

Judge: Syed Refaat Ahmed,

Court: High Court Division,,

Advocate: Rafique-ul-Huq,Mr. Rokanuddin Mahmud,Mr. S. Rashed Jahangir,,

Citation: 3 LNJ (2014) 661

Case Year: 2014

Appellant: Suraya Akhter

Respondent: Bangladesh and others

Subject: Quashment of Proceedings,

Delivery Date: 2014-05-11


HIGH COURT DIVISION
(SPECIAL ORIGINAL JURISDICTION)
 
Judgment on
11.05.20Syed Refaat Ahmed, J
And
Mahmudul Hoque, J.
14
  Suraya Akhter
. . .Petitioner
-Versus-
Bangladesh, represented by the Secretary, Ministry of Law, Justice and Parliamentary affairs Bangladesh Secretariat, Ramna, Dhaka and others.
. . .Respondents
 
Constitution of Bangladesh, 1972
Article 102
Code of Civil Procedure (V of 1908)
Section 151
Code of Criminal Procedure (V of 1898)
Section 561A
Artha Rin Adalat Ain (VIII of 2003)
Sections 33(5) (7) (7Ka) (Kha) and 57
Section 57 of the Artha Rin Adalat Ain, 2003 is similar to the power as laid down in Section 151 of the Code and Section 561A of the Code of Criminal Procedure and can be termed as recognition of inherent power of the Court. At the time of delivering the possession of mortgaged property to the Bank, section 33(7kha) automatically enjoins upon the Adalat to embark on a process of reconfirmation of title as a precondition and necessary prerequisite to handing over possession under Section 33(7Ka). Non-application or keep away in exercise of any authority under Section 57 appears wholly misconceived and illegal. Misconceived invocation of certain provisions of the law falls to be quashed under the authority of Certiorari.

Like Section 151 of the Code and Section 561A of the Code of Criminal Procedure, Section 57 of the Artha Rin Adalat Ain, 2003 is a statutory recognition of inherent jurisdiction of the court. This does not confer any power on the court, but it is a statutory recognition of power which the court does have inherently. In this regard, this Court holds that the existence of inherent jurisdiction and statutory recognition of the same will be to no avail unless the courts actively assert and invoke that jurisdiction in fit cases. In the present instance the executing court failed to invoke Section 57 in a clear example of a blatant failure to exercise jurisdiction and that constitutes a valid ground for interference in certiorari.…(13)

In the scheme of Section 33 of the Act, the moment a party in the execution proceedings, i.e. the decree holder Bank or financial institution seeks delivery of possession of property further to the Adalat’s active intervention under Section 33(5) or Section 33(7), Section 33(7kha) automatically enjoins upon the Adalat to embark on a process of reconfirmation of title as a precondition and necessary prerequisite to handing over possession under Section 33(7Ka). In other words, the necessity for delivery of possession through court has to arise even before the court can contemplate acting under Section 33(7Kha). In the present facts and circumstances, the court could only guess at such a contingency without a case for possession having been made out as yet by the decree holder bank. …(16)

 The entire process of consideration of the Petitioner’s application variously beginning with Order No. 45 of 9.2.2011 continuing through the issuance of Order No. 48 of 9.3.2011 and culminating in the Impugned Order No. 54 dated 29.7.2012 appears to this Court to be tainted by a level of high arbitrariness as amounts to illegality. The postponement or holding in abeyance of exercise of any authority under Section 57 appears wholly misconceived and illegal. The Adalat’s failure to follow up on the Bank’s compliance to Order No. 45 by producing documents appears to be the fatal flow that appears the first on record as evidently the Adalat has waived such compliance for reasons not declared and not readily evident. In Order No. 48 itself there is no cogent reason or ground cited for overriding consideration accorded to a perceived inconvenience to the Bank or to the entire execution proceedings upon the setting aside of the Section 33(5) certificate so far as relates to the Petitioner’s property. Adding to this our findings on the as yet indeterminate possibilities for intervention under Section 33(7kha), there is produced a scenario of an arbitrary exercise of discretion by the Adalat upon a non-consideration of facts, misconception of the law and resultantly asking itself the wrong question in law. That scenario, this Court finds, indeed creates a scope for intervention in Certiorari given that no tribunal has the authority to do wrong or that which is clearly illegal....(18)

Considering these facts and circumstances and the legal positions adopted this Court finds that a postponement of an effective exercise of the Adalat’s jurisdiction under whichever pretext chiefly because of avoidance of exercise of jurisdiction under Section 57, in the facts and circumstances, remains wholly misconceived and illegal and, therefore, merits active intervention by this Court. It is this Court’s reading that such process of postponement and holding in abeyance of exercise of inherent jurisdiction as made an inroad in Order No. 48 met with a natural culmination in the Impugned Order No. 54 dated 29.7.2012 to the extent of requiring the Petitioner in the meantime to disclose how the Respondent No. 3 Bank obtained the title deed to the disputed property. In that regard Order No. 54 also reads as excusing further the Bank to comply with the earlier Order No. 45 of 9.2.2011. Given our findings above, Order No. 54 to that extent must be considered as without lawful authority and of no legal effect and, thereby, liable to be quashed. It is also this Court’s finding that the true genesis of the Order 54 lies in the very terms of Order No. 48 of 9.3.2011. That Order expressly recording the Adalat’s misconceived invocation of certain provisions of the law also fall to be quashed by this Court’s authority under Certiorari. Accordingly, Order No. 48 dated 9.3.2011 as a necessary premise to Order No. 54 is also, hereby, declared to be without lawful authority and to be of no legal effect. …(21)

Mr. Rafique-ul Huq, Senior Advocate with
Mr. Golam Mostafa, Advocate
… For the Added Respondent No. 3

Mr. Rokanuddin Mahmood, Senior Advocate with
Mr. S. Rashed Jahangir, Advocate
… For the added Respondent No. 4
 
Writ Petition No. 10760 of 2012
 
Judgment
Syed Refaat Ahmed, J:

In this Application under Article 102 of the Constitution a Rule Nisi was issued calling upon the Respondents to show cause as to why the provision of Section 7 of Artha Rin Adalat Ain, 2003 should not be declared to be void being ultra vires the Constitution and as to why the Judgment and Decree dated 19.7.2006 (Annexures-‘C’ and ‘C-1’) passed by Artha Rin Adalat, 4th Court, Dhaka in Artha Rin Suit No. 45 of 2004 in so far as relating to the Petitioner and her property shall not be declared to have been passed without lawful authority and of no legal effect and as  to why proceedings of Artha Execution Case No. 46 of 2007 of Artha Rin Adalat, 4th Court, Dhaka so far as relating to the Petitioner and her property shall not be declared to be without lawful authority and of no legal effect and as to why Order of issuance of certificate under Section 33(5) of Ain, 2003 issued vide Order No. 38 dated 24.3.2010 (Annexure-‘E’) by Artha Rin Adalat, 4th Court, Dhaka in Artha Execution Case No. 46 of 2007 so far it relates to the Petitioner and her property and any auction pursuant to the said certificate shall not be declared to be without lawful authority and of no legal effect and as to why Order No. 54 dated 29.7.2012 (Annexure-‘H’) passed by Artha Rin Adalat, 4th Court, Dhaka in Miscellaneous Case No. 15 of 2012 arising out of Artha Rin Suit No. 45 of 2004 shall not be declared to have been passed without lawful authority and to be of no legal effect and/or such other or further order or orders passed as to this Court may seem fit and proper.

The two broad components of the challenge posed by the Petitioner pertain to both the legality and validity of the Judgment and Decree in Artha Rin Suit No. 45 of 2004 as well as the consequential proceedings in Artha Execution Case No. 46 of 2007 so far as these relate to the Petitioner and her property. Aside from these two broad challenges there are several specific issues of challenge further raised in the Rule issuing Order. Of these, the first challenge to the vires of Section 7 of the Artha Rin Adalat Ain, 2003 (“Act”) has in the course of these proceedings before this Court been withdrawn as not being pressed.

It is noted that Section 7 of the Act has otherwise an ubiquitous presence in the Petitioner’s case generally and in the context has figured prominently in the Petitioner’s submissions in these proceedings. The contention has been of the inadequacy and lack of sufficiency in the issuance of service of notices on the Petitioner as prescribed in Section 7 and enunciated further by principles of common law developed in this jurisdiction. Citing authority being chiefly the Appellate Division’s Judgment in Sonali Bank vs. Prime Global Ltd., reported in 63 DLR (AD) (2011),99 it has been argued that this Court can indeed take judicial notice of the publication of notices in two newspapers that do not permit of categorization as the highest circulating newspapers in this country and consequentially arrive at a finding of non-compliance with the provisions of Section 7(1) of the Act and, thereby, declare the impugned ex parte decree against the Petitioner to be a nullity simply on those grounds.

The Rule issuing Order of itself, however, is declaratory of the fact of the Petitioner looking farther beyond the issue of the legality of that ex parte judgment and decree in the Artha Rin Suit, thereby, taking her well into the execution proceedings where her efforts have been to have declared illegal and without lawful authority the issuance of a certificate under Section 33(5) of the Act. It is in conjunction with this that a specific Order being No. 38 of 20.4.2010 is impugned.

The last component of the Rule issuing Order pertains to Order No. 54 dated 29.7.2012 in Miscellaneous Case No. 15 of 2012 arising out of Artha Rin Suit No. 45 of 2004. The Miscellaneous Case is based on the Petitioner’s invocation of Section 19 read with Section 57 of the Act for setting aside the ex parte Judgment and Decree in Suit No. 45 of 2004. That Case by the impugned Order No. 54, however, came to be summarily rejected on two major grounds. The first pertains to the Adalat’s satisfaction that the notices in Suit No. 45 of 2004 had indeed been published in compliance with Section 7(1). The second reason has to do with an allegation of fraud that has gained prominence in the Petitioner’s response to the execution proceedings. With regard to the latter the Petitioner’s grievance primarily pertains to an onus disproportionately imposed on the Petitioner to establish the Respondent No. 3 Islami Bank Bangladesh Limited’s (“Bank”) embroilment in allegedly fraudulent activities that have led the Petitioner’s property being erroneously shown as being mortgaged to the Bank.

It is the Petitioner’s case that she is neither borrower nor mortgagor nor guarantor of the loan transaction availed by M/S. Dhaka Tag Limited. The Bank impleaded the Petitioner as defendant No. 27 in the suit stating in the plaint that defendant Nos. 22 and 28 are guarantors-mortgagors against the liabilities of defendant No. 1. The Petitioner further states that she did not deposit any title deed to the Bank and never executed any mortgage in favour of the Bank but the Bank by practicing fraud included the name of the Petitioner and her property in the plaint. It is the Petitioner’s assertion to the contrary that the original title deed is lying with One Bank Limited against a loan availed of by Nur Food Products.

It is interesting to note that proceeding well beyond the judgment and decree in the Artha Rin Suit the Petitioner, through sustained efforts at salvaging and protecting her property from the execution proceedings, now finds herself nearly at the very end of an execution exercise in which the arguments for all sides have focused on the relative primacy of Section 57 in juxtaposition with those of Section 33(7ka) and 33(7kha) of the Act read together.

Relying on Section 57 of the Act incorporating the statutory recognition of the Adalat’s inherent jurisdiction to be invoked and relied upon by the Adalat of its own volition in the interest of justice and prevention of abuse of its process, the Petitioner emphatically argues that the execution process has been marred fatally not only because of the Adalat’s failure to appreciate the Petitioner’s sustained efforts at establishing fraud but also of the Adalat’s failure to assert and invoke of itself that inherent jurisdiction in a case as this. Indeed, the Petitioner has gone through a lengthy process of trial and error at the execution stage invoking various provisions of the Act to undo that which has been achieved by the ex parte judgment and decree in Artha Rin Suit No. 45 of 2004.

In that exercise the Petitioner, notably, was not wholly without success before the Adalat. However, her grievance lies in the fact that two processes reflected in a series of Orders that ostensibly favourably considered the merit of the Petitioner’s initiative at unearthing fraud never, however, reached their natural procedural and substantive conclusion. This Court holds that these Orders, though not finding specific mention in the Rule issuing Order, nevertheless, constitute the essential backdrop and, in the Petitioner’s view, the standards against which this Court is asked to gauge, the legality and validity of Order No. 54 dated 29.7.2012. That Order, as earlier noted, pertains both to the issue of notices relating to the Suit itself and that of forgery raised belatedly in the execution proceedings. This Court is of the view that a perusal and substantive consideration of those certain Orders as provide the essential premise for Order No. 54, is unavoidable for a disposal of this Rule in its entirety.

Notably, the issuance of the Section 33(5) certificate under the Impugned Order No. 38 of 24.3.2010 first met with the Petitioner’s challenge through a Section 57 application for setting aside that Order. Order No. 40 of 2.1.2011 records the filing of that application and leads us to the next notable Order being No. 45 of 9.2.2011 by which the executing court directed the Respondent No. 3, Bank to produce papers submitted in the Suit and required status quo to be maintained in respect of possession of the Petitioner’s property. Admittedly, the Bank never complied with that Order and the Adalat appears also to have overlooked such obvious lapse. Order No. 47 of 2.3.2011 records the Petitioner’s sustained  efforts at assist the Adalat at getting to the bottom of the allegation of fraud and records the filing of the Petitioner’s application for a direction upon One Bank, Dhanmondi Branch to produce documents specified in that application. A separate application citing Section 33(7) and 57 of the Act read with Order 21, Rule 90 of the Code of Civil Procedure (“Code”) appears also to have been filed praying for stalling the delivery of possession of the Petitioner’s property and to set aside/recall the certificate under Section 33(5).

These circumstances, the learned Advocate for the Petitioner Mr. Probir Neogi has satisfactorily argued, called for a positive intervention by the Adalat favouring the Petitioner upon an appreciation of the true ambit and nature of the Adalat’s jurisdiction as envisaged in Section 57 of the Act. That, Mr. Neogi submits was an ideal opportunity lost by the Adalat, thereby, contributing irreversibly to the very continuity of the execution proceedings vis-à-vis the Petitioner’s property from that stage onwards. It is also at this juncture that the Adalat, according to Mr. Neogi, erroneously pitted the Section 57 provision against those of Section 33(7Ka) and (7Kha) read together upon a wholly misconceived interpretation of the law. It is Order No. 48 dated 9.3.2011, as a necessary precursor to and almost predetermining the contents of Impugned Order No. 54, that has captured this Court’s attention in this regard. It is deemed pertinent to reproduce in its entirety Order No. 48 as reads thus:

"দরখাসতকারী দায়িক তার দরখাসেতর সমর্থনে যাবতীয় কাগজপত্র দাখিল করেছে। উত্ত কাগজাদি দৃষ্টে দরখাসতকারীর দাবীকৃত সম্পত্তির ত্রুমিক হসতামতর প্রতিয়মান হয়। তাছাড়া তার নামীয় নামজারী, মহানগর জরীপ খতিয়ান যথার্থই প্রসওত হয়েছে বলে দেখা যায়। সুতরাং উত্তু সম্পত্তিতে দরখাসতকারীর স্বত্বাধিকার প্রতীয়মান হয়। উত্তু সম্পত্তিতে তার বর্তমান দখল আছে বলে শুনানীকালে বিজ্ঞ আইনজীবী প্রকাশ করে। আইনের ৩৩(৭খ) ধারা অনুযায়ী দখল অর্পনের ক্ষেত্রে বন্ধকী দলিল পরীক্ষা করার সুযোগ আছে। দরখাসতকারী বি-২৬ তপসিল সম্পত্তি বন্ধক প্রদান করেনি বলে প্রকাশ করেছে। উল্লেখ্য যে, উচ্চাদালতের সিদ্ধামত অনুযায়ী অর্থঋণ জারী মামলায় সম্পত্তির দখল হসতামতরিত না হওয়া পর্যমত জারী কেস বিচারাধীন থাকে। এই  মামলায় অাদালত মাধ্যমে দখল হসতামতরিত হয়নি। ফলে এই মামলাটি বিচারাধীন আছে।

দরখাসতকারী ৩৩(৫) ধারা মতে সনদপত্র বাতিলের জন্যও আবেদন করেছে কিমও উত্তু সনদপত্রে অনেকগুলো তফসিল অমতর্ভুত্তু আছে। দরখাসতকারী একটি মাত্র (বি-২৬) তপসিল নিয়ে আবেদন করেছে। সনদটি বাতিল করা হলে সমসত সম্পত্তি বাতিল হয়ে যাবে-যা আদৌ কাম্য নয়। যেহেতু দরখাসতকারী একটি মাত্র তপসিল নিয়ে দাবী করেছে এবং যেহেতু অনেকগুলো তপসিল নিয়ে সনদপত্র ইস্যু করা হয়েছে; সেহেতু তপসিল বর্ণিত সনদটি বাতিল করা যুত্তিুযুত্তু নয়। সে কারণে ৩৩(৫) ধারা মোতাবেক প্রদত্ত সনদপত্রটি বাতিলের আবেদন যুত্তিুযুত্তু নয় বলে সেটি নাকচ করা হলো। তবে বি-২৬ নং তপসিল সম্পত্তিতে ডিত্রুীদারের দখল গ্রহণের নিষেধ আদেশের বিষয়টি বিবেচনা করা যেতে পারে। কিমও যখন ডিত্রুীদার উত্তু সম্পত্তি দখল গ্রহণ আদালত মাধ্যমে প্রার্থনা করবে তখন বি-২৬ নং তপসিল সম্পত্তিতে বন্ধকী দলিল আইনানুযায়ী যাচাই বাছাইকালে বিষয়টি পর্যালোচনা করার সুযোগ থাকবে। ডিত্রুীদার বি-২৬ নং তপসিলের দখল গ্রহনের আবেদন করলে আইনের ৩৩(৭খ) ধারা অনুযায়ী পকৃত মালিক বন্ধক প্রদান করেছিল কিনা সেটি পরীক্ষা করা হবে।''

The positive view taken of the Petitioner’s claim and allegations appear, however, not to have translated into the Adalat’s active intervention under Section 57 given the declared inadvisability of disrupting the execution proceedings at that stage and the perceived fallback measures then still available under Section 33(7kha) of the Act. Evidently while the Adalat did not outright decline jurisdiction and authority to probe into the allegation of fraud it, nevertheless, for reasons of overwhelming consideration of facts of overriding significance cited by it, deemed fit to postpone or hold in abeyance an exercise of probing into that allegation contingent upon coming into play of a Section 33(7kha) scenario. It is here, Mr. Neogi has argued, that the Adalat asked itself the wrong question in law. He submits that on 9.3.2011 in view of its own findings reflected in Order No. 48 the Adalat was under a legal obligation to forthwith grant relief prayed for by the Petitioner under Section 57 of the Act and not defer it until a Section 33(7kha) contingency arising. That preference shown for exercise of authority under Section 33(7kha), this Court finds, is flawed variously. While Section 57 remains a declaration of the statutory recognition of power inherently reposed in the Adalat and exercisable in extremely broad terms for the ends of justice and preventing abuse of process, Section 33(7kha) in contradistinction speaks of a conferment of power by no means unlimited in its intended ambit, but the statutorily declared periphery of which are yet to be firmly established either through practice or declared by Rules formulated. In other words, the Adalat, it is found, showed a preference for navigating through unchartered territory reflected in Section 33(7kha) by wholly abdicating its statutory responsibility to draw on its overarching, ready and available inherent powers by reference to Section 57. There is nothing on record establishing why the Adalat so opted to adopt such a precarious position.

This Court holds that like Section 151 of the Code and Section 561A of the Code of Criminal Procedure, Section 57 is a statutory recognition of inherent jurisdiction of the court. This does not confer any power on the court, but it is a statutory recognition of power which the court does have inherently. In this regard, this Court holds that the existence of inherent jurisdiction and statutory recognition of the same will be to no avail unless the courts actively assert and invoke that jurisdiction in fit cases. In the present instance the executing court failed to invoke Section 57 in a clear example of a blatant failure to exercise jurisdiction and that constitutes a valid ground for interference in certiorari.

Section 33(7kha) appears on the face of it, as yet, indeterminate in its scope to the extent of delivery of possession of property to the claimant owner and indeed no consequence is expressed therein in the event that the executing court does not reconfirm that the property in question was indeed mortgaged by the real owner against the loan in question.

The problem faced here is the allusion in Section 33(7Kha) to a formalized structured proceeding before a court not, however, benefiting either from supporting provisions in the Act itself or notably from Rules of procedure that could and ought to have been framed by authority of Section 58 of the Act especially upon writing the provisions of Section 33(7Ka) and 33(7Kha) into the law by amendments introduced in 2010. That exercise under Section 58 clearly still remains outstanding.  It is noted further that Section 33(7Kha) is of mandatory application only when Section 33(7Ka) is invoked and these two provisions read pertinently thus:

৩৩।(৭ক) উপ-ধারা (৫) বা (৭) এর অধীন সম্পত্তির দখল আদালতযোগে প্রাপ্ত হওয়া আবশ্যক হইলে, ডিত্রুীদারের লিখিত আবেদনের ভিত্তিতে আদালত ডিত্রুীদারকে সম্পত্তির দখল অর্পণ করিতে পারিবে।
(৭খ) উপ-ধারা (৭ক) এর অধীন ডিত্রুীদারকে সম্পত্তির দখল অর্পণ করিবার পূর্বে আদলতে পুনঃনিশ্চিত হইতে হইবে যে, উত্তু সম্পত্তিই আইনানুগভাবে উহার প্রকৃত মালিক কর্তৃক ডিত্রুীর সংশ্লিষ্ট ঋণের বিপরীতে বন্ধক প্রদান করা হইয়াছিল অথবা ডিত্রুী কার্যকর করিবার লক্ষ্যে দায়িকের প্রকৃত স্বত্ব দখলীয় সম্পত্তি হিসাবে উত্তু সম্পত্তিই ত্রেুাক করা হইয়াছিল।

In the scheme of Section 33 of the Act, the moment a party in the execution proceedings, i.e. the decree holder Bank or financial institution seeks delivery of possession of property further to the Adalat’s active intervention under Section 33(5) or Section 33(7), Section 33(7kha) automatically enjoins upon the Adalat to embark on a process of reconfirmation of title as a precondition and necessary prerequisite to handing over possession under Section 33(7Ka). In other words, the necessity for delivery of possession through court has to arise even before the court can contemplate acting under Section 33(7Kha). In the present facts and circumstances, the court could only guess at such a contingency without a case for possession having been made out as yet by the decree holder bank.

It is here that Mr. Neogi submits that the issues generated by the Petitioner’s grievance as first agitated before the Adalat and now placed before us do not fall in any manner to be considered under Section 33(7kha). Therefore, there remained nothing to be achieved under an anticipated Section 33(Kha) process in terms of evaluating the validity of the decree and that of the adequacy of notices issued and served and, therefore, of setting aside the decree or the eventual sale. In other words, these questions mooted throughout the execution process at the Petitioner’s behest would potentially continue to be outstanding ad infinitum without promise of a legal closure if the Adalat insistently relied exclusively on Section 33(7kha) in declared preference to Section 57 and ignoring the primacy of the application of Section 57 in the circumstances. Therefore, at the end of the day, all that Order No. 48 assures the Petitioner is a mere retention of the possession of her property and precious little otherwise substantially. Indeed the Petitioner’s attempt once more to remind the Adalat of its inherent authority to probe both into the issue of notices and the fraudulent mortgage produced the Impugned Order No. 54 of 29.7.2012.

The entire process of consideration of the Petitioner’s application variously beginning with Order No. 45 of 9.2.2011 continuing through the issuance of Order No. 48 of 9.3.2011 and culminating in the Impugned Order No. 54 dated 29.7.2012 appears to this Court to be tainted by a level of high arbitrariness as amounts to illegality. The postponement or holding in abeyance of exercise of any authority under Section 57 appears wholly misconceived and illegal. The Adalat’s failure to follow up on the Bank’s compliance to Order No. 45 by producing documents appears to be the fatal flow that appears the first on record as evidently the Adalat has waived such compliance for reasons not declared and not readily evident. In Order No. 48 itself there is no cogent reason or ground cited for overriding consideration accorded to a perceived inconvenience to the Bank or to the entire execution proceedings upon the setting aside of the Section 33(5) certificate so far as relates to the Petitioner’s property. Adding to this our findings on the as yet indeterminate possibilities for intervention under Section 33(7kha), there is produced a scenario of an arbitrary exercise of discretion by the Adalat upon a non-consideration of facts, misconception of the law and resultantly asking itself the wrong question in law. That scenario, this Court finds, indeed creates a scope for intervention in Certiorari given that no tribunal has the authority to do wrong or that which is clearly illegal.

Between the Respondent No. 3 Bank and the added Respondent No. 4 auction-purchaser this Court has found the former understandably better placed to submit on the issue of fraud in this case. It is noted that the learned Advocate for the Respondent Bank, Mr. Rafique-ul-Huq has acknowledged the presence of fraud in the mortgage process but has nevertheless seen merit in the Adalat’s persistent reliance on Section 33(7kha). Indeed, Mr. Huq has submitted that it is open to the Adalat under Section 33(7kha) to undo the issuance of Section 33(5) certificate, as need be. For reasons as above elaborated, this Court is unable to concur with Mr. Rafique-ul Huq’s view of a primacy of application of Section 33(7kha).

The added Respondent No. 4 auction- purchaser represented by the learned Advocate Mr. Rokanuddin Mahmood and Mr. Rashed Jahangir have in relation to Order No. 48 submitted that the Petitioner’s failure to actively challenge that Order tantamount to her tacit acceptance of the course of action embarked upon by the Adalat consequentially. Messrs Mahmud and Jahangir submit that the effect of Section 57 pales in comparison to Section 33(7kha) merely because the Adalat itself in Order No. 48 clothes itself with the authority to consider the Petitioner’s contention and, thereby, examine the mortgage deed or relevant instrument only at the time of handing over possession. Accordingly, they agree that the Adalat aptly kept the matter for disposal under Section 33(kha). By that reason, the Adalat’s Order being apparently regular on the face of it and the Petitioner conceivably not being aggrieved by it, the prayer of the Respondent No. 4 is for this Court to refrain from intervening in Certiorari or otherwise. Indeed, it is additionally argued that both the matter of the adequacy or not of the issuance and service of notices and that of fraud are fraught with the dangers of this Court being asked to probe into highly disputed questions of fact which this Court is ill-equipped to undertake in exercise of summary jurisdiction.

Considering these facts and circums-tances and the legal positions adopted this Court finds that a postponement of an effective exercise of the Adalat’s jurisdiction under whichever pretext chiefly because of avoidance of exercise of jurisdiction under Section 57, in the facts and circumstances, remains wholly misconceived and illegal and, therefore, merits active intervention by this Court. It is this Court’s reading that such process of postponement and holding in abeyance of exercise of inherent jurisdiction as made an inroad in Order No. 48 met with a natural culmination in the Impugned Order No. 54 dated 29.7.2012 to the extent of requiring the Petitioner in the meantime to disclose how the Respondent No. 3 Bank obtained the title deed to the disputed property. In that regard Order No. 54 also reads as excusing further the Bank to comply with the earlier Order No. 45 of 9.2.2011. Given our findings above, Order No. 54 to that extent must be considered as without lawful authority and of no legal effect and, thereby, liable to be quashed. It is also this Court’s finding that the true genesis of the Order 54 lies in the very terms of Order No. 48 of 9.3.2011. That Order expressly recording the Adalat’s misconceived invocation of certain provisions of the law also fall to be quashed by this Court’s authority under Certiorari. Accordingly, Order No. 48 dated 9.3.2011 as a necessary premise to Order No. 54 is also, hereby, declared to be without lawful authority and to be of no legal effect.

Our findings above, therefore, leaves the Petitioner with a scenario where her status is restored ante quo to the date on which the executing court was reposed of the authority and jurisdiction under Section 57 to consider her application as mentioned and recorded in Order Nos. 40 of 2.1.2011, 45 of 9.2.2011 and 47 of 2.3.2011. That should concomitantly read as a revival with immediate effect of the Bank’s obligation owed to the executing court to produce all papers submitted in the original suit pertaining to the mortgage of the Petitioner’s property and the maintenance of status quo in respect of the Petitioner’s property until such time as the Petitioner’s applications are substantively disposed of. In other words, the Petitioner shall finding herself in the same position as she was on 9.3.2011 when, but for the now quashed Order No. 48, she would be awaiting a consideration of all applications under Section 57 of the Act read with any other relevant provision. That said, the Petitioner is, however, put on notice of the fact that Impugned Order No. 54 so far as relates to the adequacy of notices published in terms of Section 7(1) of the Act and, thereby, setting aside of the decree in Suit No. 45 of 2004 merit no intervention by this Court given that the Adalat found on delay aptly operating against the Petitioner under Section 19(2) of the Act. The law of its own force having thus applied and operated against the Petitioner we find no reason to intervene in so far as quashing and setting aside the Judgment and Decree dated 19.7.2006 is concerned.

Furthermore, by reason of our findings and observations above it now remains for the executing court itself to revisit and rediscover its authority under Section 57 of the Act with a view to disposing of the Petitioner’s applications chiefly of the cancellation of the Section 33(5) certificate issued under Order No. 38 of 24.3.2010. By that reason, this Court refrains from intervening in the manner as prayed for vis-à-vis these Impugned Orders leaving the executing court to be the arbiter for the time being of the fate of that certificate. In this instance as well there is found no ground to quash presently Order No. 38 dated 20.4.2010.

Given the tenor of our findings above, this Court now, hereby, directs the Artha Rin Adalat presently in seisin of Execution Case No. 46 of 2007 to revisit Order Nos. 40, 45 and 47 and proceed strictly in terms of those Orders applying the relevant provisions of the law and predominantly exercising its authority under Section 57 of the Act repeatedly invoked and appealed to by the Petitioner. That process of consideration and final disposal of the applications substantively shall not under any circumstances extend beyond the period of 3 (three) months computed from date of receipt by the executing court of this Judgment and Order.

It shall be incumbent upon the Respondent No. 3 Bank, in particular, to extend all co-operation to the Adalat in this regard bearing in mind the terms in which Order No. 45 of 9.2.2011 has been issued and itself attaches to the Bank specifically.

In the result, the Rule is disposed of with the findings, observations and directions above.

The Order of status quo as reflected in Order No. 45 dated 9.2.2011 shall continue until the final disposal of the Petitioner’s application as above directed.

There is no Order as to costs.

Communicate this Order at once.

        Ed.