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The Adalat has jurisdiction to correct error committed by it

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20th-Aug-2016       
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High Court Division :
(Special Original Jurisdiction)
Zinat Ara J
AKM Zahirul Hoque J
Judgment April 7th, 2016
Jafrul Islam Chowdhury .................. Petitioner
vs
Secretary Ministry of Law, Justice and Parliamentary Affairs and others ....Respondents
Artha Rin Adalat Ain (VIII of 2003)
Section 57
Under Section 57 of the Ain, the Adalat is empowered to pass any order for ends of justice or to prevent the abuse of the process of the Adalat. The Judge of the Adalat for ends of justice to correct the inadvertent mistake committed by it in rejecting the execution case on the ground of being barred by limitation, although it was not barred by limitation, which is evident on the face of the record. The Adalat had jurisdiction to pass such order to correct the error committed by it by miscalculation for the ends of justice. .. .... (15)
Shahida Khanom vs Ramizuddin Ahmed Bhuiyan, 43 DLR (AD) 58 and Swire Mellor vs Swire, (1885) ChD 239 ref
Md. Liton Ahmed-For the Petitioner
Md Abdur Rahman Hawlader-For Respondent No.3.
Judgment
Zinat Ara J : In this Rule Nisi, the petitioner has challenged the legality of order No.4 dated 16-6-2010 passed by the learned Judge of the Artha Rin Adalat, Cox's Bazar in Artha Rin Jari  Case No. 25 of 2009. The petitioner also challenged the legality of the auction notice published in the Daily Apon Kantha on 4 December, 2011 (Annexure-C to the writ petition).
2. Facts necessary for disposal of the Rule Nisi are as follows:-
The petitioner Jafrul Islam Chowdhury obtained loan for his business concern on 5-6-1996 of an amount of Taka 1,89,20,000 from Bangladesh Krishi Bank, Teknaf Branch. Cox's Bazar having Head Office at Motijheel Commercial Area, Dhaka (hereinafter referred to as the Bank). The loan was renewed and enhanced from time to time and lastly the loan stood at Taka 3,40,41,084. The petitioner failed to repay the loan for devastating flood, natural calamities and various causes. So, the Bank, as plaintiff, filed Artha Rin Suit No. 9 of 2007 against M/s A & I Bagda Hatchery Limited, its Managing Director, the petitioner Jafrul Islam Chowdhury and Kawsar Parvin, wife of the petitioner, for recovery of loan amounting to Taka 5,69,59,755 before the Artha Rin Adalat (Joint District Judge, 1st Court), Cox's Bazar (hereinafter stated as the Adalat). The said suit was decreed ex-parte by the learned Judge of the Adalat by order dated 24-3-2009. The decree-holder-Bank, thereafter, filed Artha Rin Jari Case No. 25 of 2009 before the Adalat on 24-3-2009 for execution of the decree. Subsequently, on 20-1-2010, the learned Judge of the Adalat rejected the said execution case summarily on the ground of being barred by limitation. Whereupon, the decree-holder-Bank filed an application for restoration of the execution case to its file and number by setting aside the order dated 20-1-2010 on the ground that the execution case was not barred by limitation. Thereupon, the learned Judge of the Adalat by impugned order No. 4 dated 16-6-2010 allowed the application, set-side the order dated 20-1-2010 and restored the Artha Rin Jari Case to its file and number and issued notices upon the judgment-debtors under Section 30 of the Artha Rin Adalat Ain, 2003 (hereinafter referred to as the Ain). Subsequently, in the execution case, order was passed for auction sale of the mortgaged property of the petitioner in a national daily as well as in a local news paper. At that stage, the judgment debtors appeared before the Adalat on 30-9-2010 by filing Vokalat-nama and prayed for time which was allowed. Eventually, order was passed again for auction sale of the mortgaged property. In the above scenario, the judgment-debtor-petitioner filed this writ petition and obtained the Rule. Subsequently, an order of stay was passed by the Court on 6-3-2012 at the prayer of the petitioner.
3. Respondent No.3 the Bank contested the Rule by filing an affidavit-in-opposition supporting the impugned order as well as the auction notice contending, inter-alia, that the execution case was not barred by limitation and it was filed well within time; that Artha Rin Suit was decreed on 24-3-2009 and the decree was drawn up and signed on 30-3-2009; that in the judgment, the learned Judge allowed 45 days' time to the judgment-debtors for payment of the decretal amount and, as such, the time for filing of execution case will start after the expiry of the said 45 days; that the Bank filed execution case within 180 days after expiry of the said 45 days' time which was allowed to the judgment-debtors for payment of the decretal dues; that the execution case having 'been filed on 3-11-2009, it is well within time (45+ 180=225 days) inasmuch as the execution case was filed within 217 days from the date of decree; that as per provision of Section 48 of the Ain, for calculation of the period of limitation only the working days of the Adalat has to be counted; that in the above scenario, on an application filed by the petitioner under Section 57 of the Ain, the learned Judge of the Adalat legally restored the execution case; that the auction notice was also lawfully published as per order of the learned Judge of the Adalat; that in the above facts and circumstances, the impugned order as well as the auction notice is lawful and the Rule is thus liable to be discharged.
4. Mr Md Uton Ahmed the learned Advocate for the 'petitioner takes us through the writ petition, the connected materials on record and submits that after discharge of the execution case, the learned Judge of the Adalat had no jurisdiction to set-aside the said order and restore the execution case to its file and number. He next submits that in the circumstances, impugned order No. 4 dated 16-6-2010 and the auction notice dated 4-12-2011 are illegal and the Rule is, thus, liable to be made absolute.
5. In reply, Mr Md Abdur Rahman Hawlader, the learned Advocate for respondent No.3, takes us through the affidavit-in-opposition and the connected materials on record and contends that it is evident from the judgment and decree that the decree was signed on (30-3-2000) and in the judgment and decree, 45 days time was allowed to the judgment-debtors for payment of the decretal amount. He next contends that under Section 29 of the Ain, the time for filing of the execution case has to he counted after the expiry of the said period of 45 days in view of the provision of Section 28(1) of the Ain. Accordingly, the execution case had to be filed within 180+45=225 days from 30-3-2009 i.e. within 15-11-2009 and the execution case was filed on 3-11-2009 and, as such, the execution case was never barred by limitation. He next contends that the learned Judge of the Adalat inadvertently rejected the execution case summarily without counting 45 days time, which was allowed to the judgment-debtors to pay the decretal dues, He further contends that in the above scenario, the Bank filed an application under Section 57 of the Ain clearly stating the fact that the execution case was not barred by limitation. Whereupon, the learned Judge of the Adalat, in exercising jurisdiction under Section 57 of the Ain, revived the execution ease by setting aside the previous order legally and the auction notice was also lawfully published in the news papers. Mr Md Abdul Rahman Hawlader finally contends that in the circumstances, the impugned order and the auction notice are legal and the Rule is, thus, liable to be discharged.
6. In support of his contentions, Mr Hawlader has relied on the decision in the case of Keramat Ali Bhuiyan being dead his heirs Shahida Khanom vs Ramizuddin Ahmed Bhuiyan, reported in 43 DLR (AD) 58.
7. We have examined the writ petition, the affidavit-in-opposition and the connected materials on record.
8. From the application for execution of the decree (Annexure-A to the writ petition), it transpires that the execution case was filed on 3-112009. From the judgment (Annexure-l to the affidavit-in-opposition), it transpires that the judgment was delivered on 24-3-2009 allowing 45 days' time to the judgment-debtors to pay the decretal amount in favour of the Bank, failing which, the Bank was at liberty to realize the decretal dues through the Adalat. From the decree (Annexure-2 to the affidavit-in-opposition), it transpires that the decree was drawn up and signed on 30-3-2009.
9. To decide the question on limitation relating to filing or execution case under the Ain, the provisions of sections 28 and 29 of the Ain are relevant.
10. The provisions of sections 28(1) and 29 of the Ain read as under:-
Ò28| Rvwii Rb¨ gvgjv `vwL‡ji mgqmxgv| (1) The Limitation Act, 1908  Ges The Code of Civil Procedure, 1908 G ভিন্নতর যে বিধানই থাকুক না কেন, ডিক্রিদার, আদালতযোগে ডিক্রি বা আদেশ কার্যকর করিতে ইচ্ছা করিলে, ডিক্রি বা আদেশ প্রদত্ত হওয়ার অনূর্ধ্ব ১৮০ (একশত) দিবসের মধ্যে, ধারা ২৯ এর বিধান সাপেক্ষে, জারির জন্য আদালতে দরখাস্ত দাখিল করিয়া মামলা করিবে।
.....................................
...................................”
২৯। সময়সীমা সম্পর্কিত বিধান। - আদালত, রায় প্রদানের সময় ডিক্রিকৃত টাকা এককালীন অথবা কিস্তিতে পরিশোধের জন্য কোন সময়সীমা নির্ধারণ করিয়া থাকিলে, অনুরূপ সময়সীমা অতিক্রান্ত বা অকার্যকর হইবার পর হইতে ধারা ২৯(১) এ উল্লিখিত সময়সীমা কার্যাকর হইবে।
(Underlined by us)
11. Therefore, on combined reading of sections 28(1) and 29 of the Ain, it is evident that the period of limitation has to be calculated/counted from the date of expiry for payment of the decretal dues allowed by the Adalat to the judgment debtors.
12. In the instant case, we have already seen that 45 days' time was allowed to the judgment debtors to pay the decretal dues. Therefore, the period of limitation has to be calculated/counted after the said 5 days. In such scenario, the execution case has to be filed within 45+ 180=225 days from the date of the decree, which was drawn up and signed on 30-3-2009 i.e. within 15-11-2009.
13. From the materials on record as discussed, it is found that the execution case was fi led before the Adalat on 3-11-2009. Therefore, the execution case was filed by the Bank within the period of limitation. But the learned Judge of the Adalat without counting 45 days with 180 days erroneously rejected the execution case summarily. The Bank, thereafter, filed an application under Section 57 of the Ain clearly stating that the Bank has filed the execution case within time in view of the provision of sections 28(1) and 29 of the Ain, as 45 days time was given in the judgment and the decree. Whereupon, the learned Judge of the Adalat set-aside the order summarily rejecting the execution case and restored the execution ease to its file and number, though the learned Judge of the Adalat did not properly state the reasons for allowing the application and restoring the execution case.
14. For the reasons discussed hereinbefore, it is evident that due to inadvertent mistake of the learned Judge of the Adalat in calculating/counting the period of limitation, the execution case was summarily rejected on the ground of being barred by limitation, although, in fact, the execution case was not at all barred by limitation.
15. Under Section 57 of the Ain, the Adalat is empowered to pass any order for ends of justice or to prevent the abuse of the process of the Adalat. In the instant case, it transpires that the impugned order, in fact, has been passed by the learned Judge of the Adalat for ends of justice to correct the inadvertent mistake committed by it in rejecting the execution case on the ground of being barred by limitation, although it was not barred by limitation, which is evident on the face of the record. The Adalat had jurisdiction to pass such order to correct the error committed by it by miscalculation for the ends of justice.
16. In the case reported in 43 DLR (AD) 58, similar principle was settled by the Appellate Division. In that case, their lordships of the Appellate Division decided as under:-
"The Court had inherent jurisdiction to restore the suit under Section 151 CPC. The Subordinate Judge himself noticed in his order that the learned advocate for the respondent was not informed as to SD in spite of the order of the Court and thus he was not aware about the date of receipt of the case record and the date of hearing of the suit. When an injury is caused to a party due to any mistake or default committed by a court or its officers there are high authorities laying down that in circumstances of this nature, it is not only the right but the duty of the Court to correct its own mistake. In re:
Swire Mellor vs Swire, (1885) ChD 239 Down, LJ of the Court of Appeal dealing with a question regarding the power of a Court to correct its own mistake observed as follows 'I think, the true view is, as stated by the Lord Justice Cotton, that every Court has inherent power over its own records so long as these records are within its power and that it can set right any mistake in them. It seems to me that it could be perfectly shocking it the Court cannot rectify the error which is really the error of its own minister. An order as it seems to me even when pass and entered may be amended by the Court to carry out the intention and express the meaning of the Court of the time when the order was made, provided the amendment be made without injustice or on terms which preclude injustice.'  Therefore, it will be seen that the question of limitation was, in any view of the matter, immaterial in the present case inasmuch as the Court in restoring the suit merely corrected the mistake of its officers of not informing, the learned advocate of the parties about the receiving back of the record and the next date fixed." (Bold, emphasis supplied)
17. In the instant case, the learned Judge or the Adalat was fully justified in passing, the impugned order to rectify its own order. Moreover, notices were served upon the judgment-debtors and they appeared in the execution case. So, no injustice was done to them.
18. Further, due to failure of the judgment-debtors to pay the decretal dues, the impugned auction notice was lawfully published in the newspaper for auction sale of the judgmentdebtors' properties to realize the decretal dues.
19. In view of the discussions made hereinbefore, we find no merit in the submissions of Mr Md Liton Ahmed and we find merit and force m the submissions of Mr Md Abdur Rahman Hawlader.
20. For the discussions made hereinbefore. vis-a-vis the law, the impugned order and the auction notice are found to be lawful.
21. Accordingly, the Rule is discharged without any order as to costs.
23. The learned Judge of the Adalat is directed to proceed with the Artha Rin Jari Case No. 25 of 2009 in accordance with law.
Communicate the judgment to respondents Nos. 2 and 3 at once.

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