Home Today's Paper Most Popular Video Gallery Photo Gallery
Subscription Blog Signin Register
Logo
Saturday, December 15, 2018 12:26:43 AM
Follow Us On: Facebook Twitter Twitter Twitter Twitter

Ain empowers Adalat to issue warrant against judgement-debtor

By
19th-May-2018       
Comments
Share your thought
Post a comment »
Read all () »

High Court Division :
(Special Original Jurisdiction)
Md Miftah Uddin
Choudhury J     
Md Mozibur Rahman
Miah J
Abdul Hafiz Salawat …………….
……………………..Petitioner
vs
First Court of Artha Rin Adalat, Chattogram and others …………  
............ Respondents"
Judgment
November 25th 2015
Artha Rin Adalat Ain (VIII of 2003)
Section 34(10)
Since the provision of sub-section 10 of Section 34 of the Ain empower the Adalat to issue warrant of arrest as well as to detain the judgement-debtor in default to re-paying the decreetal dues to the creditor bank, no illegality has been committed to issue warrant of arrest against the petitioner to compel him in repaying the decreetal dues.
Since indubitably, the petitioner being a judgment-debtor so the learned Judge of the Artha Rin Adalat has rightly passed the impugned order issuing, warrant of arrest against the petitioner. So the alleged proposition so taken by the learned counsel for the petitioner that, since the petitioner is not a loanee so he can neither be arrested not be detain in civil prison compelling him to repay the decreetal dues of principal judgment-debtor can in no way be sustained in law. .. .... (16 & 14)
Artha Rin Adalat Ain (VIII of 2003)
Section 34(9)(10)
Since the provision so enunciated in Section 34(10) clearly provides that, if it is not  possible to hold a single auction sale under Section 34(9) of the Ain in that case, the judgment-debtors can be arrested and put in Civil Prison. While legislate, sub-section 10 of Section 34, the legislature very consciously foresaw that if there remains no property of the borrower to mortgage with the Creditor-bank in such a posture, Court can clothe with the authority to issue warrant of arrest and detain the judgment-debtors in Civil Prison to compel the judgment-debtors to repay the decreetal dues. On going through the provision of Section 34 we also find that, the legislature does not differentiate the borrower and guarantor in the event of issuing warrant of arrest and to detain in Civil Prison rather in every places in section 34 of 'the Ain' it denotes the word "judgment-debtor."     (13)
Md Ismail Miah with Md Mamunur Rashid, Advocates-For the Respondent No.2.

SM Moniruzzaman, DAG, with Mosammat Khairun Nessa, AAG and Suchira Hossain, AAG-For the Respondents.
Judgment
Md Mozibur Rahman Miah J : By filing an application under Article 102 of the Constitution, the petitioner has challenged the propriety of the order dated 12-3-2012 passed by the learned Judge of the Artha Rin Adalat, 1st Court, Chattogram, in Artha Rin Execution Case No. 17 of 2011 issuing warrant of arrest against him claiming to declare it to have been passed without lawful authority and is of no legal effect and/ or such other or further order or orders passed as to this Court may seem fit and proper.
2. At the time of issuance of the Rule the operation of the impugned order was also stayed till disposal of the Rule.
3. The relevant facts as has been figured in the writ petition in short are that;
The petitioner claimed to be a guarantor of a loan so availed by the borrower, named ASM Golam Kibria made as defendant No.2 in Artha Rin Suit No. 34 of 2007 as a security in repaying the said loan. Since the said borrower failed to repay the loan so availed from respondent No.3-bank, it ultimately filed Artha Rin Suit being No. 34 of 2007 before the Artha Rin Adalat, 1st Court, Chittagong, for realisation of its outstanding dues to the tune of Taka 28,19,846.05 where the petitioner was impleaded as defendant No. 3. The said suit was eventually decreed on contest against the defendants by Judgement and deerce dated 3-10-2010.
4. Since the defendants failed to pay the decreetal amount in terms of the Judgement, the decree holder bank then put the said decree in execution by filing Execution Case being No. 17 of 2011 claiming Taka 40,83,099.31 wherein this petitioner was also made as Judgement debtor No.3.
 (To be continued)
5. In course of the said Execution proceedings, the judgment-debtors entered their appearance. As no property had been mortgaged with the decreetal bank, when the loan was sanctioned, the decree holder on 15-5-2011 filed an application under Section 34(1) of 'Artha Rin Adalat Ain' 2003 (shortly, 'the Ain') praying for issuing warrant of arrest against the judgment-debtors.
6. The learned Judge, Artha Rin Aoalat on considering the application so filed by the decree holder bank issued warrant of arrest against the judgment-debtors by order dated 5-7-2011. This petitioner being aggrieved with the said order filed an application on 13-10-2011 before the Artha Rin Adalat for recalling the said warrant of arrest issued against him.
7. On considering the said application, the learned Judge of the Artha Rin Adalat by hisorder dated 17-10-2011 allowed the said petition asking the respondent bank to show cause within 45 days as to why warrant of arrest will not be issued against the petitioner. When the said mater was pending before the Artha Rin Adalat, the petitioner by suppressing those facts filed a Writ Petition being Writ Petition No. 7455 of 2011 challenging the very order of issuing warrant of arrest dated 5-7-2011.
8. By virtue of that Writ Petition this Court on 12-12-2011 issued a Rule and stayed the operation of the said order of warrant of arrest for a period of 4 (four) months asking the petitioner to deposit 25% of the decreetal amount within two months and that of the rest amunt by three equal installments. But when the matter came to the notice of the learned Judges of this Court the Rule was then discharged finding it in-fructuous.
9. After disposal of that Writ Petition the decree holder bank then filed another application on 1-3-2012 for issuing warrant of arrest against the judgment-debtors. Against the said prayer of Bank the petitioner filed an application for rejecting the said prayer. The learned Judge, of the Artha Rin Adalat then vide impugned order dated 12-3-2012 issued warrant of arrest against the judgment-debtors, challenging which the Petitioner obtained the instant Rule and order of stay.
10. Mr Mohammed Shamsul Alam, the learned counsel appearing for the petitioner has assailed the impugned order mainly on two grounds first, since the petitioner is not a loanee rather a mere guarantor of the loan so, warrant of arrest cannot be issued against him. Second, since Creditor bank failed to hold a single auction under the provision of Section 34(9) of the Ain so the order passed by the learned Judge, Artha Rin Adalat cannot be sustained. On such assertions the learned counsel for the petitioner prayed for making the Rule absolute.
11. By contrast, Mr Md Ismail Miah appeared for Mr Md Mamunur Rashid, the learned counsel for respondent No.2 opposed the rule by filing an affidavit-in-opposition where it has contended that, since the statute itself does not differentiate among the borrower and guarantor while issuing warrant of arrest, so the learned Judge of the Artha Rin Adalat has committed no illegally in issuing warrant of arrest against the petitioner.
12. It has further been contended in the affidavit-in-opposition that, since there has been no property mortgaged with the bank in such a situation, bank is unable to sell the property of the judgment-debtors for which the provision of Section 34(10) of the Ain would come in to play and as such, the learned Judge comitted no illegality issuing warrant of arrest against the petitioner. On such contention it was prayed for discharging the Rule.
13. We have heard the learned counsel for the petitioner perused the grounds so couched in the Writ Petition, contentions so taken in the affidavit-in-opposition and other papers annexed thereto and considered those meticulously. On going through the contents of the annexure so submitted by the petitioner we find that, the petitioner as well as well as other judgment-debtor did not mortgage any property in favour of the decreetal-bank to secure the repayment of the loan. Since the provision so enunciated in Section 34(10) clearly provides that, if it is not possible to hold a single auction sale under Section 34(9) of the Ain in that case, the judgment-debtors can be arrested and put in Civil Prison. While legislate, sub-section 10 of Section 34, the legislature very consciousy foresaw that if there remains no property of the borrower to mortgage with the creditor-bank in such a posture, Court can clothe with the authority to issue warrant of arrest and detain the judgment-debtors in Civil Prison to compel the judgment-debtors to repay the decreetal dues. On going through the provision of Section 34 we also find that, the legislature does not differentiate the borrower and guarantor in the event of issuing warrant of arrest and to detain in Civil Prison rather in every places in Section 34 of 'the Ain' it denotes the word "judgment-debtor."
14. Since indubitably, the petitioner being a judgment-debtor so the learned Judge of the Artha Rin Adalat has rightly passed the impugned order issuing warrant of arrest against the petitioner. So the allged proposition so taken by the learned counsel for the petitioner that, since the petitioner is not a loanee so he can neither be arrested nor be detain in civil prison compelling him to repay the decreetal dues of principal judgment-debtor can in no way be sustained in law.
15. Record depicts, this petitioner had earlier filed writ petition No. 7455 of 2011 before this Court, Challenging same issues suppressing material facts but though discharged he even dared to move freely and contested the very issuing warrant of arrest dated 12-3-2012. Again, the judgment-debtor No.2 also filed Writ Petition No. 8057 of 2008 which was also discharged. So the judgment debtors left no stone unturned to halt the very realisation of decreetal dues of the creditor-bank which should be knocked down for the sake of realising public money.
16. Moreover, since the provision of subsection 10 of the Section 34 of the Ain empower the Artha Rin Adalat to issue warrant of arrest as well as to detain the judgment-debtor in default to re-paying the decreetal dues to the creditor bank, so we find that, no illegality has been committed on the part of the respondent No. 1 to issue warrant of arrest against the petitioner to compel him in repaying the decreetal dues.
17. In the premises, we find no error in the impugned order that calls for any interference by us consequently, the instant Rule has got no substance.
19. Hence, the order dated 12-3-2012 passed by the learned Judge, Artha Rin Adalat, First Court, Chattogram is hereby sustained.
20. The order of stay granted at the time of issuance of the Rule is hereby recalled and vacated.
Let a copy of this order be communicated to respondent No.1 at once for guidance.

Tariff
Add Rate

News Archive

Inside The New Nation

Entertainment »

Mim`s new movie Thai Curry


Sheikh Arif Bulbon :End of this year is becoming something new for the National Film Award winner actress Bidya Sinha Saha Mim. At the end of this year, she has started shooting of a new movie. Now she is staying in Bangkok to take part in shooting of the movie. ...

Business & Economy »

In presence of Mohammed Monirul Moula, AMD of Islami Bank Bangladesh Limited, Abu Reza Md. Yeahia, DMD of the Bank and Dr. M. Easin Ali, Chairman of Dhaka City Physiotherapy Hospital, exchanging an agreement signing document at the Banks head office in the city on Wednesday. Under the deal, VISA and Khidmah Card holders of the Bank will get attractive discount in treatment services of the Hospital. Top officials from both the organizations were also present.


.

Cricket »

Malinga named captain for ODI, T20I series against New Zealand


Sri Lanka pacer Lasith Malinga, who until recently was out of favour with the selectors, has been appointed as the captain for the upcoming ODI and T20I series against New Zealand. He replaces Dinesh Chandimal, who led the side in the recently concluded ODI series and Thisara Perera, who captained ...

International »

US Senate votes to end support for Saudi-led Yemen war, blasts crown prince


The US Senate dealt President Donald Trump a double blow over Saudi Arabia on Thursday, approving a resolution to end US military support for Riyadh's war in Yemen, and another holding the Saudi crown prince responsible for the murder of Jamal Khashoggi.Though largely symbolic, the two bipartisan measures deliver a ...

International »

Islamic State not defeated, just transforming: Experts


Even as the last pockets of resistance in eastern Syria hold their ground, the Islamic State group is shapeshifting into a new, but no less dangerous, underground form, experts warn.Also known as ISIS, or the Islamic State in Iraq and Syria, the group had long been ready to cede the ...

Editorial »

Time to avail the golden opportunity to explore Japan`s rich market


BANGLADESH wants to explore the potentials of sending skilled workers to Japan as the country is likely to open its job market for foreign workers. The matter is likely to be raised at Foreign Secretary-level talks scheduled to be held on December 17 in Tokyo.Foreign Secretary M Shahidul Haque and ...

Editorial »

Involve the youths in decision making process


A RECENT survey rightly indicated that unified and quality education system for all is imperative to turn today's youth into skilled manpower for future Bangladesh. Ahead of the 11th National Election, the survey findings clearly echoed the youth voice who emphasised meritorious teacher recruitment at primary school to tertiary level ...

International »

Pompeo says journalist Khashoggi`s death still being probed


Reuters, Washington  :U.S. Secretary of State Mike Pompeo on Wednesday said investigations into the killing of Saudi journalist Jamal Khashoggi were still ongoing but that the United States would hold those found responsible accountable for his death.Pompeo's comments to Fox News echoed U.S. President Donald Trump's stance on the killing ...

Sports »

Memphis Grizzlies guard Mike Conley (11) drives against Portland Trail Blazers guard Damian Lillard in the first half of an NBA basketball game in Memphis on Wednesday.


.

Entertainment »

Chanchal, Shahnaz Khushi pair up in new TV serial


Sheikh Arif Bulbon :Viewers always enjoy the on screen chemistry between National Film Award winner actor Chanchal Chowdhury and popular TV actress Shahnaz Khushi. In their acted TV play or telefilm or faction play, there must have a message for the viewers. For this reason, viewers always show their keen ...

Editorial »

Outstanding performance of our farmers


FARMERS of Pirojpur district have successfully used marshlands to grow up paddy saplings which would help meet sapling shortage in the waterlogged areas during paddy cultivation. In the district, farmers devoid of sapling during the Boro season as most uplands, where Boro seedlings usually grew, have been used for cultivating ...

International »

France hunts gunman after three killed at Strasbourg Christmas market


AFP  :Hundreds of police hunted Wednesday for a gunman who shot dead three people and wounded 13, eight seriously, at a famed Christmas market in Strasbourg, on the French border with Germany.The attack took place Tuesday around 8 pm (1900 GMT) in the heart of the medieval city as the ...

City »

A faction of BFUJ and DUJ staged a demonstration in front of the Jatiya Press Club on Wednesday in protest against closure of 54 online news portal.


.

Cricket »

Mashrafe regrets not getting another 20-25 runs after loss


UNB, Dhaka :Bangladesh lost the second ODI of the three-match series on Tuesday at Sher-e-Bangla National Cricket Stadium to the Windies by four wickets. The hosts' captain Mashrafe Bin Mortaza regrets more 20-25 runs at the end of the match.Bangladesh posted 255 for seven wickets in the first innings after ...

Entertainment »

Priyanka Gope in discussion with her new song


Sheikh Arif Bulbon :It is mostly happened in case of many singers where despite having outstanding lyrics and mind blowing composition many songs do not hit among the music lovers. For this reason, many singers cannot create attention among the listeners. National Film Award winner singer Priyanka Gope has rendered ...

 
Items that you save may be read at any time on your computer, iPad, iPhone or Android devices.
 
Are you new to our website? Do you have already an account at our website?
Create An Account Log in here
Email this news to a friend or like someone
Email:
Write a comment to this news