May 24, 2013 | 05:50 PM (BD Time)
24 May, 2013 Friday
Judges hold office as a public trust
Mohammad Fazlul Karim, CJ; Md. Abdul Matin, Shah Abu Nayeem Mominur Rahman, A.B.M. Khairul Haque, Md. Muzammel Hossain and Surendra Kumar Sinha, JJ
LT. COL. MA. MANNAN (RETD)
(In both the cases)
SOCIAL INVESTMENT BANK LTD.
(In C.A. No.48 of 2006)
DOCTOR JH GAZI AND OTHERS
(In C.A. No.49 of 2006)
The judges have to honour the judicial office which they hold as a public trust. Their every action and their every word-must show and reflect correctly that they hold the office as a public trust. The greatest strength of the judiciary is the faith of the people in it. Faith, confidence and acceptability can not be commanded; they have to be earned.
The Artha Rin Adalat has exceeded its jurisdiction in selling the mortgaged property in auction without following the provisions of law and that's too when the decree holder itself prayed in Court that it had already compromised the matter with the judgment debtor subject to the approval of the Bangladesh Bank. (Para-11)
Mr. Mahmudul Islam, Senior Advocate, instructed by Mr. Syed Mahbubar Rahman, Advocate-on-Record, For the Appellant, (In both the appeals).
Mr. Rafique-ul-Haque, Senior Advocate, instructed by Mrs. Sufia Khatun, Advocate-on-Record, For Respondent No.1, (In CA. No.49 of 2006).
Mr. Syed Amirul Islam, Senior Advocate, instructed by Mr. Md. Aftab Hossain, Advocate-on-Record, For Respondent No A, (In CA. No.48 of 2006)
Mr. Rafique-ul-Haque, Senior Advocate, instructed by Mrs. Sufia Khatun, Advocate on-Record, For Respondent No.5, (In C.A. NoA9 of 2006).
For Respondent Nos.2,3 & 5, (In CA. No 48 of 2006) : Not Represented.
For Respondent Nos.1-4, (In CA. No.49 of 2006) : Not Represented.
Judgment delivered on 1st June. 2010.
S.K. Sinha, J: These appeals, by leave, one at the instance of auction purchaser Lt. Col. M.A. Mannan (Retd) and other at the instance of the decree holder Social Investment Bank Limited arise out the same judgment in Writ Petition Nos. 4783 of 2003 and 4803 of 2003 and therefore these appeals are disposed of by this judgment analogously.
2. The respondent No.1 Social Investment Bank Limited instituted Artha Rin Suit No.58 of 2000 for realization of Tk. 1,77,48,652/against the respondent Nos.3-5. The suit was ultimately decreed on 28th September, 2001 and pursuant thereto the decree holder put the decree into execution in Title Execution Case NO.26 of 2002 on 7th March, 2002 against the judgment debtors for recovery of a sum of Tk.2,09,59,112/-. There was publication notice for selling of the mortgaged property on auction on 18th February, 2003 and ultimately 12th March, 2003 was fixed for sale of the mortgaged property. As no bidder attended in the auction sale on successive three dates on 12th March, 30th March and 14th June, 2003, the decree holder came up with an application that it had amicably settled the dispute regard ing payment of the decreetal amount with the judgment debtor and prayed for staying further proceedings of the executing case and that the judgment debtor had already deposited Tk 40,00,000/-. The executing Court adjourned the matter on 29th June, 2003 for payment of the balance decreetal amount, failing which, it was directed that the auction sale of the property will be held on that day. On 29th June, the decree holder again filed an application for adjournment of the matter on the ground that the terms of settlement are yet to be settled between the parties. The executing Court rejected the said application and took up the matter for auction sale when the appellant Lt. Col. MA Mannan (Retd) submitted tender for Tk. 1,52,00,000/-. The other two bidders being disqualified their tenders were rejected. The executing Court accepted the tender of the appellant and directed him to deposit the balance consideration amount within 10 days. On the same day the decree holder prayed for not accepting the tender submitted by the appellant M. A. Mannan. The executing Court did not pass any order on the reasoning that the tender of Abdul Mannan had already been accepted.
3. The decree holder thereupon instituted the above Writ Petition No 4783 of 2003 against the said order dated 29th June, 2003. The judgment-debtor also filed Writ Petition No.4803 of 2003 challenging the said order of the executing Court. The auction-purchaser, the present appellant contested the Writ petitions by filing affidavits-in-opposition contending that the executing Court has committed no error of law in accepting his tender. that there was no compromise between the decree holder and the judgment debtor, that the decree holder in collusion with the judgment debtor filed the application for stay and that the writ petitions are liable to be dismissed.
4. The High Court Division upon hearing the parties made both the rules absolute, quashed the order dated 29th June, 2003 and directed executing Court to proceed with the execution case in accordance with law with a further direction that if any valid compromise is effected between the parties that can be accepted on being satisfied as per provisions of law, and that if no valid compromise is effected, the executing Court will publish fresh notice for sale of the mortgaged property in accordance with law.
5. The High Court Division after reproducing section 33 of the Artha Rin Adalat Ain, 2003 observed that as no bidder participated in the bid on two previous dates, the Adalat on the application of the judgment debtor adjourned the proceedings and fixed 29th June, 2003 for payment of the rest of the decreetal dues, and the selling of the property without publication or advertisement in the newspaper is not authorised by the law, and that the Adalat had no jurisdiction to sell the property in such manner it sold to the respondent No.5.
6. It is contended on behalf of the appellant that the High Court Division erred in law in finding that sections 33 and 39 had not been complied with by the executing Court while selling the mortgaged property on 29th June, 2003.
7. Section 33 provides the procedure for selling any property by the Artha Rin Adalat for realization of the decreetal amount. Subsection (1) of section 33 provides for publication of notice by giving 15 days time inviting tender for auction sale at least in one national daily news paper. Sub-sections (2) and (3) provide the procedure for filing tender by the intending purchasers. Sub-section (4) of section 33 provides that if it is not practicable to sell the property on auction under sub-sections (1 ),(2) and (3), the Adalat shall direct publication of notice at least in two Bangali daily newspapers, and if it is practicable in a local newspaper, as per provisions of Sub-section (1) of section 33. These provisions clearly show that at the initial stage the publication of notice for sale of the mortgaged property or any other property be made in a national daily newspaper and on such publication if the sale can not be effected, then the Adalat will direct for publication of notice for sale at least in two daily national newspapers by giving 15 days time, which is the minimum requirement of law.
8. In the case in hand, we noticed that by order dated 12th May, 2003 the executing Court fixed 14th June, 2003 for auction sale but on that day no bidder had participated for purchasing the mortgaged property. On the other hand, the decree holder filed application for staying the proceedings on the ground that it had reached at a mutual settlement with the judgment debtor for payment of the decreetal amount. In the context of the matter the executing Court ought to have accepted the prayer. And if such prayer can not be acceded to, the Court should have directed to publish notice for selling the mortgaged property on auction on 29th June, 2003 but the executing Court
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