Home Today's Paper Most Popular Video Gallery Photo Gallery
Subscription Blog Signin Register
Logo
Friday, February 22, 2019 05:09:50 AM
Follow Us On: Facebook Twitter Twitter Twitter Twitter
BREAKING NEWS:

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

Cricket »

BD lose to NZ in third ODI


Sports Reporter :Despite Sabbir Rahman's century Bangladesh lost to New Zealand by 88 runs in the third and last One Day International (ODI) match at Dunedin in New Zealand on Wednesday. New Zealand clinched the ODI series 3-0.Sabbir hit a marvelous 102. His 110-ball innings was laced with 12 fours ...

Editorial »

True spirit of Ekushey must be reflected everywhere


THE nation solemnly remembers the supreme sacrifice of the valiant souls who laid down their lives to establish the right of our mother tongue Bangla as the state language of Pakistan on this day in 1952. As the pioneering movement that led to our ultimate independence, Ekushey invokes the emotional ...

International »

Palestinian President rejects tax money from Israel


Reuters, Ramallah, West Bank :The Palestinian Authority (PA) will no longer accept tax revenues collected on its behalf by Israel following its decision to trim the sum over the PA's financial support of militants' families, Palestinian President Mahmoud Abbas said.The cash-strapped Palestinian Authority, an interim self-government body set up following ...

City »

President of Bangladesh Diploma Student Nurses Union Sadia Akhter speaking at a press conference in DRU auditorium on Wednesday demanding Prime Minister Sheikh Hasina's intervention in resisting conspiracy to ruin nursing education.


.

Entertainment »

Strong and confident female characters attract Kriti Sanon


Actress Kriti Sanon is all set for a superb 2019 with Luka Chuppi, Arjun Patiala, Housefull 4 and Panipat. The characters the actress is essaying are strong-minded and confident as she is drawn towards such empowered characters. Kriti’s role in Bareilly Ki Barfi as Bitti was that of an independent ...

Editorial »

Prevent gas cylinder and pipeline explosions


GAS explosion has become very common in the country nowadays. Even if someone escapes death, the victim has to suffer burn injury or loss of valuable organs. The authorities concerned still did not take any effective step to control such incidents. In the latest incident, seven people including a couple ...

Entertainment »

Malaika Arora opens up about her divorce with Arbaaz Khan


Malaika Arora, who is recently making headlines for her relationship with Arjun Kapoor and the couples social PDA, recently opened up about her divorce with Arbaaz Khan on a radio show. Talking about her divorce she revealed that it was a mutual decision to part ways so that they could ...

City »

BNP Standing Committee Member Dr. Khondkar Mosharraf Hossain, among others, at a discussion organised by Bangladesh Jatiyatabadi Muktijoddha Dal at the Jatiya Press Club on Tuesday demanding release of BNP Chief Begum Khaleda Zia.


.

International »

Pakistan PM urges talks on Kashmir blast, warns India against attack


Reuters, Islamabad :Prime Minister Imran Khan said on Tuesday Pakistan was ready to cooperate with India in its investigation of a deadly bombing in the disputed Kashmir region last week, which India blamed on Pakistan, but warned of retaliation if attacked.Tension between the nuclear-armed neighbors has risen sharply over the ...

Sports »

Al Amin Zumar and Mukhtar Hossain of Daffodil International University receiving the championship trophy of the Inter-University Badminton Tournament and a cheque of Taka 15,000 from Dr Mohammed Farashuddin, Chairman, Board of Trustees of East West University, at the playground of East West University in the city on Monday.


.

Editorial »

Not memorization, students need analytical involvement


ABOUT one lakh students have applied to the Directorate of Primary Education (DPE) of the Primary and Mass Education Ministry for reexamination of their results, claiming that justice will be established if the authorities work properly. Some of students who failed in the examination alleged that they did not get ...

International »

`Crime may have been committed` by Trump: Ex-FBI official


AP, Washington :Former FBI Deputy Director Andrew McCabe said in an interview that aired Sunday that a "crime may have been committed" when President Donald Trump fired the head of the FBI and tried to publicly undermine an investigation into his campaign's ties to Russia. McCabe also said in the ...

Entertainment »

Moury Salim prefers challenging roles


Sheikh Arif Bulbon :Actress of present generation Moury Salim has been engaged with acting for many days. Though she has been busy with acting for long time but could not get the opportunity to work in challenging roles properly or the directors did not utilise her acting quality appropriately. On ...

Cricket »

Girona beat Real Madrid


BBC Online :Real Madrid missed the chance to go second in La Liga as Girona came from behind to record a surprise away win on Sunday.Casemiro powerfully headed in from Toni Kroos' deep cross from the right wing to give the hosts a first-half lead.Cristhian Stuani's penalty made it 1-1 ...

City »

Director General of Bangladesh Agricultural Research Institute Dr. Abul Kalam Azad speaking at the inaugural ceremony of a training programme on 'Marker Assisted Selection' at its seminar room in Gazipur on Monday.


.

 
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