The New Nation - Internet Edition

Zinat Ara and Sheikh Abdul Awal, JJ

MIS. F.R. GARMENTS (PVT.) LTD.

v.

ARTHA RIN ADALAT NO.1, DHAKA AND OTHERS·

An application under Article 102 of the Constitution does· not lie against the judgment and decree of the Artha Rin Adalat since there being specific provision in the statute for filing appeal against the judgment and decree passed by the Artha Rin Adalat.

Section 28(1) of the Artha Rin Adalat Ain, 2003 provides that the execution case shall be filed within 180 days. Section 48 of the Ain, 2003 provides that in order for counting the days under the provision of this Ain, only the working days of the Court shall be counted. Although, In this case we find from the chart for calculation of time as given in the writ petition that the petitioner did not minus so far it relates to non working days of the Court the execution case is not barred by limitation. If a suit is a mortgage suit and brought for foreclosure, the decree pronounced by the Adalat shall be a preliminary decree and the decrees of the Adalat for recovery of loans in other cases are to be treated final decrees. (Para-14 & 18)

Mr. Md. Asrarul Hoque, Advocate, For the Petitioner

Mr. Akram H-Chowdhury, Advocate, For the Added Respondent No. 3

Judgment delivered on April 23,2008.

Judgment

Sheikh Abdul Awal, J: In this Rule Nisi the respondents have been called upon to show cause as to why the impugned order dated 1.10.2006 (Annexure-E) passed by respondent No. 1 rejecting the application for dismissing the Money Execution Case No. 658 of 2005 arising out of judgment and decree dated 3.3.2005 passed by the Artha Rin Adalat No. 1, Dhaka in Artha Rin Suit No. 914 of 2004 should not be declared to have been passed without lawful authority and is of no legal effect.

2. Material facts leading to this Rule are that the respondent No.2, Agrani Bank as plaintiff instituted Artha Rin Suit No. 914 of 2004 in the Artha Rin Adalat No.1, Dhaka impleading the· petitioner and others for realisation of its outstanding dues amounting to Taka 2,20,33,779/- as stood on 31.7.2004. The defendant did not turn to contest the suit in which the suit was decreed ex parte vide judgment and decree dated 3.3.2005 (preliminary decree was signed on 9.3.20(5).

3. In usual course the decree-holder Bank (respondent No. 2) put the decree into execution by filing Artha-Jari Case No. 658 of 2005.

4. The defendant-petitioner (judgment debtor) entered appearance in the said ArthaJari case by filing power and on 17.9.2006 filed an application for dismissal of the Money Execution Case on the ground that the execution case is barred by limitation as per provision of sections 28(1) and 29 of the Ain, 2003 and also on the ground the decree is hit by section 47 of the Ain, 2003. The Adalat on considering the materials on record rejected the said application by his order dated 1.10.2006.

5. Being aggrieved by the aforesaid order dated 1.10.2006 (Annexure-E to· the writ petition) the petitioner approached this Court and obtained the present Rule.

6. Mr. Md. Asrarul Hoque, the learned Advocate appearing for the petitioner submits that execution case is barred by limitation, inasmuch as in view of the provision of sub-section (1) of section 28 of the Artha Rin Adalat Ain, 2003 (hereinafter called the Ain, 2003) the execution case has to be filed within 180 days but in the present case tlie exparte judgment and decree was passed on 3.3.2005 (decree signed on 9.3.2005) and the Money Execution case was filed on 9.11.2005 which is beyond 180 days. He next submits that the Artha Rin Suit No. 914 of 2004 was also barred by limitation, inasmuch as the respondent Bank filed the same beyond the limitation period of 3 years as laid down in section 47 of the Ain. 2003 although, the learned Judge of Artha Rin Adalat under misconception of law and facts most illegally and mechanically rejected the application for dismissal of the execution case in a summary manner by the impugned order dated 1.10.2006 and as such, the same should be declared to have been passed without lawful authority and is of no legal effect.

7. On the other hand, Mr. Akram H. Chowdhury, the learned Advocate appearing for the added respondent No. 3, Bangladesh Shilpa Bank (BSB), supports the impugned judgment and decree and order dated 1.10.2006 passed by. the Artha Rin Adalat No.1, Dhaka which were, according to hirn correct, just and proper. He submits that the instant writ petition has filed by the petitioner chalIenging the impugned judgment and decree passed by the Artha Rin Adalat which is misconceived and not maintainable in law, inasmuch as by now it has been welI settled that no writ petition lies against the judgment and decree passed by the Artha Rin Adalat since there is a specific provision in the Ain for seeking remedy against the judgment and decree passed by the Artha Rin Adalat. The learned Advocate next on referring the provisions of sub-section 1 to section 28 and 48 of the Ain. 2003 submits that the execution case is not barred by limitation which was filed well within 180 working days and as such, the Rule is liable to be discharged. Mr. Akram H-Chowdhury in support of his submissions relied on the decisions reported 46 DLR(AD)191, 54 DLR(AD)6 and 2001 DLR(AD)6.

8. These are the points which were argued . by the learned Advocates for the respective parties.

9. We' have perused the writ petition, affidavit-in-opposition, supplementary affidavit and other materials on record. In order to appreciate the submissions of the learned Advocates for the respective parties from a correct angle, it would be convenient for us to decide first of ~ll as to the question of maintainability of the writ petition.

10. In the case of Zahirul Islam Vs National Bank Limited and others reported in 46 DLR(AD)191, where it has been decided as follows:

"The petitioner, without filing any appeal, filed an application under Article 102. of the Constitution, namely, Writ Petition No. 892 of 1991 which was dismissed summarily by a Division Bench of the High Court Division. on 30.6.91 on the ground that the petitioner has an alternative and efficacious remedy by way of appeal.::::. The petition is dismissed. "

11. In the case of Gazi M Towfic Vs Agrani Bank reported in 54 DLR(AD) 6, where the principles has been laid down in the following terms:

"The law is now settled that since specific provision for appeal has been made against the judgment and decree passed by the Artha Rin Adalat no application under Article 102 lies against such judgment and decree."

12. In the case of Bangladesh Agricultural Development Corporation (BADC) Vs Artha Rin Adalat reported in 59 DLR(AD) 6, it has been decided:

"In view of the decisions quoted above we are led to irresistible conclusion that there being specific remedy in the statute for filing appeal against the judgment and decree of the Artha Rin Adalat in the present case the defendant not availing of the aforesaid remedy cannot maintain the writ petition."

13. From a reading of the above quoted uniform decisions of our Apex Court, we find a clear view of the law as it stands today that an application under Article 102 of the Constitution does not lie against the judgment and decree of the Artha Rin Adalat since there being specific provision in the statute for filing appeal against the judgment and decree passed by the Artha Rin Adalat. Therefore, we find substance in the submission of the learned Advocate for the respondent-bank that the instant writ petition is a misconceived one and not maintainable.

14. To meet the contention of Mr. Md. Asrarul Hoque that the Execution Case No. 658 of 2005 arising out of judgment and decree dated 3.3.2005 passed by the Altha Riri Adalat No.1, Dhaka in Artha Rin Suit No. 914 of 2004 is barred by 11 days from the judgment and 5 days from the date of signing decree. We have examined the execution case as well as the provisions of sections 28, 29 and 48 of the Ain, 2003. Section 28(1) of the Ain, 2003 provides the execution case shall be filed within 180 days. Admittedly, ex parte judgment and decree was passed on 3.3.2005 (preliminary decree signed on 9.3.2005) with a direction for payment of money to the defendant within 60 days and the execution case was filed by the respondent Bank on 9.11.2005 in order to execute the decree. Section 48 of the Ain, 2003 provides that in order to count the days under the provision of this Ain, only the working days of the Court shall be counted. Although, in this case (we find from the chart for calculation of time as given in the writ petition that the petitioner did not minus so far it relates to non working days of the Court. So, on this point, we are of the view that the execution case is not barred by limitation.

15. Mr. Md. Asrarul Hoqu e, the learned Advocate appearing for the petitioner at the end of the day submits that in this case the s decree-holder bank started the execution proceeding on the basis of the preliminary decree which is ex-facie illegal.

16. In deciding this question we feel it necessary to reproduce the provision of section 5 (3) of the Artha Rin Ain, 2003.

17. Section 5(3) of the Artha Rin Adalat

Ain, 2003 reads as follows:,

(3) Dc aviv (2) Gi Aaxb Avw_©K cÖwZôvb KZ©"K `v‡qiK…Z gvgjv wbw®Œq mgvwßi (Foreclosure ) D‡Ï‡k¨ GKwU eÜKx gvgjv (Mortgage suit) nB‡j, GKwU eÜKx gvgjv (Mortgage suit ) nB‡j, †KejgvÎ †mB †‡Î Av`vjZ KZ…©K cÖ`Ë wWwµx cÖv_wgK wWµx (Preliminary decree) nB‡e Ges Ab¨vb¨ mKj †‡Î FY Av`vqv_© `v‡qiK…Z gvgjvq Av`vjZ KZ…©K cÖ`Ë wWwµ PzovšÍ wWµx (Final decree) nB‡e|Ó

18. From a reading of the above quoted provision, it manifests that if a suit is a mortgage suit and brought for foreclosure, in that case, the decree pronounced by the Adalat shall be a preliminary decree and the decrees of the Adalat for recovery of loans in other cases are to be treated as final decrees. Therefore, we find no merit in the submission of the learned Advocate for the petitioner on this point.

19. As to the question that the Artha Rin Suit No. 914 of 2004 was barred by limitation, we have already indicated that Artha Rin Suit No. 914 of 2004 was decreed by the Artha Rin Adalat by judgment and decree dated 3.3.2005 against which there being specific provision in the statute for seeking remedy by way of appeal. This venture under the writ jurisdiction is not permissible.

20. In view of our discussions made in· the foregoing paragraphs vis-a-vis the uniform decisions of our Apex Court as cited above by now it is clear that the instant Rule must fail.

21. In the result, the Rule is discharged with a cost of Taka 5,000/- (five thousand). " The order of stay granted by this Court stands vacated.

22. The Artha Rin Adalat No.1, Dhaka is 11 directed to proceed with the Execution Case
23. Communicate the judgment at once.