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Auction notice publication not needed in execution cases

High Court Division
Special Original Jurisdiction
Zinat Ara J
Md Abu Zafor
Siddique J
Afifa Sultana...............
....................Petitioner
vs
Judge, Artha Rin Adalat and
others ....................Respondents*
Judgment
January 9th, 2011
Artha Rin Adalat Ain (VIII of 2008)
Section 33( I )
Code of Civil Procedure (V of 2003)
 Order XXI, rule 64
The Ain is a special law providing special procedure for auction sale of the mortgaged property under section 33 of the Ain. The Adalat is empowered to pass an order for publishing auction sale notice of the mortgage property directly and the provision of Order XXI, rule 64 of the Code is not applicable relating to auction sale in Artha Ain Execution Cases. .. .... (24)
Zahirul Islam vs National Bank Ltd. 46 DLR (AD) 191, Gazi M Towfiq vs Agrani Bank. 54 DLR (AD) 6:  Bangladesh Agricultural Development Corporation vs Artha Rin Adalat. 59 DLR (AD) 6 and Edruk Limited vs Secretary, Ministry of Industries, 14 BLC 102 ref.
Md Arshad Ullah, Advocate-For the Petitioner.
Md Imam Hasan, Advocate-For the Respondent No.2.

Judgment
Zinat Ara J : In this rule nisi, the petitioner called in question the legality of the judgment and decree dated 17-2-2004 (decree signed on 23-2-2004, Annexure-D and E to the writ petition respectively) passed by the learned Judge of the Artha Rin Adalat No.4, Dhaka in Artha Rin Suit No. 371 of 2003. The petitioner also challenged the initiation of the proceeding of Artha Jari Case No. 214 of 2007 without drawing up final decree as well as Order No, 4 dated 29-11-1007 for issuance of sale proclamation without passing order of sale as required under Order XXI, rule 64 of the Code of Civil Procedure and the successive orders passed in the execution case.
2. The petitioner's case, in short, are as follows:
The petitioner is a director of Messrs Romana Industries Limited (hereinafter referred to as the Company). Respondent No.3 Md Altaf Uddin is the full brother of the petitioner and Managing Director of the Company. Respondent No.3 by misleading the petitioner managed to mortgage her properties fully described in the schedule of the plaint of Title Suit No. 45 of 1003. The Company obtained loan from respondent No.2, Rupali Bank Limited, Ibrahim Mansion Corporate Branch, 11 Purana Paltan, Dhaka (hereinafter stated as the Bank). The Bank instituted Title Suit No. 45 of 2003 on 21-4-2003 before the Joint District Judge and Artha Rin Adalat No.4, Dhaka for recovery of loan amounting to Taka 51,46,231.10 against the petitioner, the Company and its directors. After the Artha Rin Adalat Ain, 2003 came into operation, the said suit was renumbered as Artha Rin Suit No. 371 of 2003 before the Artha Rin Adalat No.4, Dhaka (the Adalat, in short). The petitioner had executed a deed of mortgage as well as a power of attorney in favour of the Bank as security of loan of Taka 20,000 only. In the deed of mortgage as well as the power of attorney address of the petitioner has been correctly described as under :
Ò†gvmv¤§vr Avwddv myjZvbv, ¯^vgx-†gvt wjqvKZ Avjx Lvb, mvs-18bs Bm`vBi †ivW, _vbv-dZzjøv, †Rjv - bvivqbMÄ|Ó
3. The Bank fraudulently by giving false address of the petitioner instituted Title Suit No. 45 of 1003 (renumbered as Artha Rin Suit No. 371 of 2003) and the summon of the suit was not served upon the petitioner. Therefore, the petitioner was not aware about the institution of the suit. However, the suit was decreed on contest against the Company and other defendants and ex parte against the defendant-petitioner by judgment and decree dated 17-2-2004 (decree signed on 23-2-2004). The Bank thereafter filed Artha Jari Case No. 214 of 2007 on the basis of the preliminary decree signed on 23-2-2004 before the Adalat prior to drawing up of the final decree and the learned Judge of the Adalat directed to publish the auction sale notice by order dated 23-11-2007 in the daily newspaper under section 33(1) of the Ain but no one participated in the auction. Eventually, on an application filed by the Bank for issuance of title under section 33(7) of the Ain, the learned Judge of the Adalat issued certificate of title by order dated 25-6-2009. The petitioner came to know about the suit and the proceeding of the execution case in the first week of March. 2010 from respondent No.3 (brother of the petitioner) and filed this writ petition.
4. Respondent No.2, the Bank contested the rule by filing an affidavit-in-opposition denying the material averments made in the writ petition contending inter alia that at the time of availing the loan, the petitioner signed and executed all necessary documents as director of the Company.
The petitioner admitted that the loanee-company and other directors appeared and contested the Artha Rin Suit. It is hardly believable that she was not aware about the said suit as all other directors of the Company contested the suit. Summons were duly served upon the defendant-petitioner in accordance with law.
Certificate of title has also been issued in favour of the Bank under section 33(7) of the Ain in accordance with law. The writ petition is misconceived, not maintainable and the rule is liable to be discharged.
5. The petitioner filed a supplementary affidavit stating that the deed of mortgage was executed and registered on 22-10-1994 between the petitioner as first party and respondent No.2 as second party providing additional security for a term loan amounting to Taka 20,000 and the petitioner mortgaged the property as additional security for an amount of Taka 20,000 and if,  respondent Nos. 3 and 4 have not repaid the said term loan in the meantime, the petitioner is ready to pay the said amount of Taka 20,000 with interest in favour of the Bank.
6. The Bank filed an affi