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Land not shown in schedule cannot be sold in auction

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High Court Division
(Civil Revisional Jurisdiction)
Md Abdul Hafiz J
SM Mozibur
Rahman J
Aminul Islam (Md).........
Judgment-Debtor-Petitioner
        vs
Bangladesh House Building Finance Corporation, Dhaka.......Decree-Holder-Opposite Party
Judgment
May 12th, 2015
Code of Civil Procedure (V of 1908)
Section 115(1)
The executing Court cannot pass any order for auction sale of any land not shown in the schedule of the execution case.
We have perused the order in question dated 3-6-2013 and found that the learned Judge of the executing Court erroneously accepted the commission report which is not consistent with the mortgaged land shown, to the 'Kha' schedule of the plaint. The land shown in the commission report and the mortgaged land figured in the schedule of the plaint is quite different. We have seen the photocopy of auction sale notice of the mortgaged land published in the local daily news paper, which is very much consistent with the mortgaged land shown in the schedule of the plaint. So, it is crystal clear that the land of commissioner's report submitted after local investigation has no conformity with the mortgaged land shown in the schedule of the plaint and the execution case. Mortgaged land shown in the auction sale notice published in the local newspaper is also seen to be consistent with the mortgaged land embodied in the 2nd schedule land of the plaint and the same mortgaged land has also been figured in the schedule of the instant execution case. .........(10)
Md Shafiqul Islam. Advocate-For the Judgment Debtor-Opposite Party.
Md Abdul Haque, Advocate - For the Judgment-Debtor-Petitioner.
Md Imam Hossain with Khurshed Jahan. Advocates -For the Decree-Holder Opposite Party.
Judgment
SM Mozibur Rahman J : This Rule was issued, at the instance of judgment-debtor petitioner calling upon the decree-holder opposite party No.1 and judgment-debtors opposite parties No. 2-9 to show cause as to why the impugned order No. 116 dated 3-6-2013 passed by the learned Judge, Artha Rin Adalat, Mymensingh in Execution Case No. 26 of 1995 accepting the commissioner's report should not be set-aside.
2. Short facts, necessary for disposal of the Rule, is that the opposite party No. 1 as plaintiff filed Money Suit No. 14 of 1993 (Artha Rin) for realization of Taka 13,22,160.98 against Begum Sufia Khatun and Md Shahidul Islam (the heirs of late Monsur AIi); that the suit was decreed ex-parte in preliminary form on 15-2-1995 on the basis of which the decree-holder filed Execution Case No. 26 of 1995 in the Court of Subordinate Judge (now Joint District Judge) Artha Rin Adalat Mymensingh for execution of the decree; that in the above execution case the name of petitioner was added as judgment-debtor though in fact he was not borrower nor the occupier of the suit land; that the judgment-debtor Md Shafiqul Islam on 19-4-2010 submitted an application for local investigation by appointing an Advocate Commissioner in respect of multi-storied building standing on the suit land. After hearing both sides, the application for local investigation was rejected vide order No. 167 dated 19-4-2010; the judgment-debtor Md Shafiqul Islam on 26-4-2010 again submitted an application for local investigation through survey knowing commissioner. That after hearing the parties, this second application was also rejected vide order No. 168 dated 26-4-2010; that after· rejection of 2 (two) applications for local investigation the judgment debtor Md Shafiqul Islam filed another application for local investigation on 2-8-2012 for demarcating the mortgaged land; the application for local investigation dated 2-8-20 10 was allowed vide order No. 174 dated 8-8-2010 in strength of which the Civil Court Commissioner submitted his report on 30-9-2010 after concluding local investigation as prayed for by the petitioner Md Shafiqul Islam.
3. The petitioner submitted written objection on 26-10-2010 against the commissioner's report dated 30-9-2010 stating inter alia that the petitioner is the owner of 3-1/4 decimal land in CS Plot No. 3216, he is possessing the land by constructing a half building there and the petitioner is residing in his half building with his family since 1993.
The land of the petitioner have been recorded under BRS Khatian No. 1482, BRS Plot No. 10339 as homestead nature land in the name of the petitioner; the learned Judge Artha Rin Adalat, Mymensingh by his order dated 30-92010 accepted the commission report; that the learned Judge Artha Rin Adalat Mymensingh upon misconception of law without applying judicial mind erroneously accepted the commissioner's report and thereby committed error of law resulting in an error in the decision occasioning failure of justice; that the court below in accepting the commissioner's report failed to understand that the commissioner's report dated 30-9-2010 is inconsistent with the decree in respect of location of the mortgaged land, as such, by accepting the commissioner's report the court below committed error of law resulting in an error in the decision occasioning failure of justice; the loan was given by the House Building Finance Corporation by installments on the basis of progress of construction of the multi-storied building.
The construction work of  the multi-storied building was duly supervised by the Engineers of House Building Finance Corporation and upon extent of construction of the building the loan was disbursed.
After completion of the construction of the multi-storied building the borrower was residing in the building at one Flat and he leased out other Flats to different persons.
As such the commissioner's report showing one old half building upon the suit land is absolutely impractical and the report has been filed with malafide intention to grab the properly of the petitioner and to safe the mortgaged property from auction sale which is occupied by the judgment-debtor Md Shafiqul Islam; that in the commissioner report the location of the mortgaged properly have been shifted upon the property of the petitioner though the property of the petitioner was never mortgaged in favour of the House Building Finance Corporation and no Multi-storied building is existing, upon the land of the petitioner. While proper step was taken in the execution case to sale the mortgaged property, auction notice dated 23-7-2003 was published in the daily news paper Dainik Jahan fixing the date of auction on 18-8-2003, wherein the property was mentioned as multi-storied building; that the decree-holder as well as the judgment-debtor Md Shafiqul Islam collusively proceeding with the execution case to grab the property of the petitioner which is beyond mortgage and to save the mortgaged property along with the multi-storied building from auction sale.
The court below without knowing the suit land wrongly accepted the commissioner's report and thereby committed error of law resulting  in an error in the decision occasioning failure of justice.
4. After hearing both the parties, the learned Judge of Artha Rin Adalat, Mymensingh passed the impugned order dated 3-6-2013, in Execution Case No. 26 of 1995 accepting the local investigation report submitted for the purpose of ascertaining the location of the suit land.  
5. Being aggrieved by and dissatisfied with the impugned order dated 3-6-2013 passed by the learned Judge of Artha Rin Adalat, Mymensingh petitioner moved the instant Civil Revision and obtained the Rule.
6. Mr Md Abdul Hoque, the learned Advocate appearing on behalf of the petitioner, submits that the learned Judge of Artha Rin Adalat, Mymensingh upon misconception of law without applying judicial mind erroneously accepted the commissioner's report and thereby committed error of law resulting in an error in the decision occasioning failure of justice. He further submits that the court below in accepting the commissioner's report failed to understand that the commissioner's report dated 3-6-2013 is inconsistent with the decree in respect of location of the mortgaged land as has been mentioned in the schedule of the execution case. He further submits that the loan was given by the House Building Finance Corporation by installments on the basis of progress of construction of the Multi-storied building.
The construction work of the multi-storied building was duly supervised by the Engineers of House Building Finance Corporation and upon extent of construction of the building the loan was disbursed.
Alter completion of the construction of the multi-storied building, the borrower was residing in the building at one flat and he leased out other flats to different persons. As such, the commissioner's report showing one old half building upon the suit land is absolutely impractical and the report has been filed with malafide intention to grab the property of the petitioner and to save the mortgaged property from auction sale which is occupied by the judgment-debtor Md Shafiqul Islam. He further submits that in the commissioner's report the location of the mortgaged property has been shifted upon the property of the petitioner, though the property of the petitioner was never mortgaged in favour of the House Building Finance Corporation and no multi-storied building is existing upon the land of the petitioner. As such, by accepting the commissioner's report the Court below committed error of law resulting in an error in the decision occasioning failure of justice. Accordingly, he submits that the present Rule is liable to be made absolute for ends of justice.
7. Mr Md Imam Hossain, the learned Advocate appearing on behalf of the opposite parties submits that the loanee was the owner of the mortgaged property and there is a contractual relationship between the loanee and BHBFC. After death of the loanee his 4 sons and two daughters as his legal heirs became judgment debtors of the Execution Case. Now Md Aminul Islam and Md Shafiqul Islam heirs of the loanee have tried to place themselves in a different capacity to avoid the loan liability. Since loanee was the owner of the mortgage property therefore it is immaterial who possess which part of the property under the deed of mortgage. He further submits that CS Dag is mentioned in the deed produced in the Court by the petitioner in the application of the revision but SA Dag is not mentioned there which is conflicting. Since the loanee was owner of entire land which is mortgaged to BHBFC so the heirs of the loanee will be substituted not only as heir but also they will have to bear the liability of loan sanctioned in favour of their predecessor.
8. In view of the above arguments agitated by the learned lawyers for both sides we have perused the impugned judgment and order dated 3-6-2013 passed by the learned judge of the Artha Rin Adalat Mymensingh and other materials on record.
9. It appears that Bangladesh House Building Finance Corporation as decree-holder initiated this Execution Case being No. 26 of 95 for the purpose of realising their decreed money of Taka ,14,24,871.30 against the petitioner judgment-debtor and opposite party Nos. 2-6 art 10-10-95. Petitioner and the judgment-debtor opposite party Nos. 2-6 art heirs of deceased Monsur Ali, who during his lifetime took loan from the House Building Finance Corporation, Mymensingh for constructing multi-storied residential building. After the death of the said Monsur Ali, petitioner and opposite parties No. 2-6 were substituted as the judgment; debtor being legal heirs of the late Monsur Ali. At the time of sanctioning loan from the House Building Finance Corporation, Mymensingh the borrower late father of the petitioner judgment-debtor mortgaged .06 decimal land in CS Plot No. 3216 under CS Khatian No. 10 of JL No. 79 wherein a multi-storied building is situated with specific boundary as has been shown in the 2nd schedule of the plaint. But after initiation of this Execution Case the judgment-debtor opposite party No. 2 Shafiqul Islam on 19-4-2010 submitted a petition before the executing Court praying for local investigation of the mortgaged land which was rejected by the leaned judge of the executing Court. Only seven days after the rejection of the petition mentioned above, the petitioner's brother judgment-debtor opposite party No. 2 again submitted another petition on 26-4-2010 for local investigation and this second petition was also rejected by the executing Court.
Thereafter, the judgment-debtor Shafiqul Islam brother of this petitioner filed third petition for local investigation on 2-8-2012 for demarcating the mortgaged land and this petition was allowed by the learned Judge of the executing Court by his order dated 8-8-20. So, it is seen that after rejecting the same nature petition consecutively for two times earlier, the learned Judge of the executing Court allowed the third petition of local investigation for demarcating the land mortgaged to the House Building Finance Corporation, Mymensingh in compliance of which local investigation was held and the report in this respect was by the impugned order dated 3-6-2013.
10. We have perused the order in question dated 3-6-2013 and found that the learned Judge of the executing Court erroneously accepted the commission report which is not consistent with the mortgaged land shown to the "Kha" schedule of the plaint. The land shown in the commission report and the mortgaged land figured in the schedule of the plaint is quite different.
We have seen the photocopy of auction salt notice of the mortgaged lane published in the local daily news paper, which is very much consistent with the mortgaged land shown in the schedule of the plaint So. it is crystal clear that the land of commissioner's report submitted after local investigation has no conformity with the mortgaged land shown in the schedule of the plaint and the execution case.
Mortgaged land shown in the auction sale notice published in the local news paper is also seen to be consistent with the mortgaged land embodied in the 2nd schedule land of the plaint and the same mortgaged land has also been figured in the schedule of the instant execution case. So the executing Court cannot pass any order for auction sale of any land not shown in the schedule of the Execution Case. Considering all these aspects we are of the view that the impugned order dated 3-6-2013 suffers from gross irregularity and has occasioned failure of justice, as such, not tenable in law.
11. In the result, the Rule is made absolute.  
12. The impugned order No. 116 dated 3-6-2013 passed by the learned Judge, Artha Rin Adalat, Mymensingh in Execution Case No. 26 of 1995 is hereby set-aside.
Let a copy of this judgment be sent to the learned Judge of the concerned Court for information and necessary steps.

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