Sonali Bank Vs. Artha Rin Adalat, Narayangonj and others, 2009, 38 CLC (AD)

Saturday, 21 November 2009 14:32

Written by Md. Ershadul Karim

Supreme Court

Appellate Division

(Civil)

Present:

Mohammad Fazlul Karim J

Md. Joynul Abedin J

Shah Abu Nayeem Mominur Rahman J

Sonali Bank, Shilpa Bhaban Corporate Branch, Dhaka……..Petitioner

Vs.

Artha Rin Adalat, Narayangonj and others……........Respondents

Judgment

April 12, 2009.

Lawyers Involved:

M. A. Sobhan, Advocate instructed by Nurul Islam Bhuiya, Advocate-on-Record-For the Petitioner.

Not represented-the Respondents.

Civil Petition for Leave to Appeal No.1529 of 2008.

(From the judgment and order dated 17.04.2007 passed by the High Court Division in Writ Petition No.687 of 2005)

Judgment

Shah Abu Nayeem Mominur Rahman J. - This leave petition is directed against the judgment and order dated 17.04.2007 passed in Writ Petition No. 687 of 2005 by the High Court Division discharging the Rule.

2. The Rule arises out of an order dated 02.01.2005 and 09.01.2005 passed in Mortgage Execution Case No.8 of 1995 by the Artha Rin Adalat, Narayanganj, rejecting the application for cancellation of the auction bid held on the date i.e. on 02.01.2005 and acceptance of the highest bid amount of Tk. 9,04,000/- directing deposit of the balance auction-bid amount through pay order on 12.1.2005 and the order rejecting the review petition filed against the order dated 02.01.2005 and also an application filed on 04.01.2005 by the decree-holder-bank for issuing certificate under section 33(5) of the Artha Rin Adalat Ain, 2003 canceling the auction. The writ petitioner bank filed the Title Suit No.262 of 1992 (Artha Rin) in the Court of learned Subordinate Judge and Artha Rin Adalat No.1, Dhaka, for recovery of Tk. 32,45,037/ 81 as of 30.09.1992 with 20% interest till realization and the suit was decreed ex-parte on 28.11.1993, pursuant to which the writ-petitioner bank filed an application for drawing up of the final decree permitting sale of the mortgage property and accordingly a final decree was passed and drawn up 30.05.1994 and thereafter the writ petitioner filed Mortgage Execution Case No.8 of 1995 for execution of the decree. Thereafter auction notice was published in "The Dainik Al Muzadded" and in "Dainik Ittefaq" inviting bid against the sale of the mortgaged property worth Tk. 25, 00,000/- and on 02.01.2005 bids against tender were received, in which the highest bid amount was Tk. 9, 04,000/- and as the bid amount was exorbitantly low the writ-petitioner bank filed an application for canceling the auction which was refused and the said bid was accepted by the Court. Being aggrieved, the writ petitioner filed an application for review of the order dated 02.01.2005 and also filed an application for issuing certificate as per Section 33(5) of the Artha Rin Adalat Ain, 2003 in favour of the writ petitioner bank to vest the property in its favour and name but the aforesaid two applications were refused and thus being aggrieved the writ-petitioner bank challenged the aforesaid orders dated 02.01.2005 and 09.01.2005 in the writ petition, wherein, the rule was issued. Thereafter, the High Court Division by its judgment and order dated 17.04.2007 discharged the Rule observing, amongst others, that:-

"the petitioner bank has already withdrawn the sale proceeds and since the sale has been confirmed by the executing court and sale certificate has already been issued, the title of the property has already been vested upon the auction purchaser".

3. The High Court Division also observed that earlier the Rule was discharged for default as no one appeared on 22.05.2006 and the order of stay granted earlier was vacated and the executing court was directed to proceed with execution case in accordance with law and that on the prayer of the petitioner bank the writ petition was restored to its original file and number on 15.06.2006 recalling the default order dated 22.05.2006 but it appears from the order sheet of Execution Case No. 8 of 1995 annexed to the lave petition the order relating to restoring of the Rule was not communicated to the Court below and that an application was filed in the execution court for proceeding with the execution case on 04.07.2006 pursuant to which the Executing Court proceeded with the execution proceeding, Being aggrieved, the writ petition bank filed the leave petition.

4. The learned Advocate appearing for the writ petitioner bank submitted that the orders relation to auction sales were passed by the Execution Court in spite of the order of stay granted by the High Court Division being in force inasmuch as the Rule issued in Writ Petition No. 687 of 2005 though discharged on 15.05.2006 for default but the same was restored on 15.06.2006 and as such the order passed by the Executing Court after 15.06.2006 are without lawful authority, hence the order relating to confirmation of auction sale is without lawful authority.

5. We have perused the writ petition as well as the order dated 02.01.2005 and 09.01.2005 passed in Mortgage Execution Case No.8 of 1995 and the Judgment and order passed in the writ petition and considered the submission made by the learned Advocate appearing for the leave petitioner. It appears that the leave petitioner bank is negligent in not informing the executing court about the fact of restoration of the rule and stay dated 15.06.2006 and that the leave petitioner bank by filing an application on 25.06.2006 prayed for receiving the pay order submitted by the auction purchaser in Court and it appears from the impugned judgment and order passed by the High Court Division that the leave petitioner bank has already encashed the pay order and thereby accepted the auction sale. In view of the provision of law to the effect that once an auction sale is complete no relief is available against such auction sale but the mortgagee may proceed against the mortgagor bank for any compensation, if it is proved that there was illegality in the auction sale. In the instant case, it is not such case rather it appears that at the instance of the decree holder bank auction was held and ultimately the decree holder bank has withdrawn the money deposited by the auction purchasers. After the auction process is completed, proceeding with the execution case is redundant.

Thus we do not find any illegality in the impugned judgment passed by the High Court Division.

Accordingly, the petition for leave to appeal is dismissed.

Ed.

This Case is also Reported in: VI ADC (2009) 686.