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Artha Rin Adalat Ain (VIII of 2003)

Six months civil imprisonment if the decretal amount not paid off

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09th-Nov-2019       
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High Court Division :
(Special Original Jurisdiction)
Md Ashfaqul Islam J
Mohammad Ali J
Janata Bank Limited ... Petitioner
vs
Artha Rin Adalat, Chittagong and others ........... Respondents

Judgment
October 11th, 2018
Artha Rin Adalat Ain (VIII of 2003)
Sections 34(1) & 34(5)
Artha Rin Adalat Ain, which is a special law, specifically fixed the maximum period of sentence up to which a person can be detained in the civil imprisonment is 6 (six) months. This is the maximum sentence and also the minimum because if we glean Section 34(1) which enjoins that a person can be detained in the civil jail up to 6 (six) months and then Section (5) of Section 34 clearly provides for two situations in a disjunctive manner-(l) that a person can be confined in the civil jail till the realization of the entire decretal amount or (2) till serving 6 (six) months in the custody, whichever is earlier, that is to say that if a person has been detained in the civil custody for a period of 6 (six) months and during the said period, the decretal amount has been paid up in its entirety then at once he will be released from the civil imprisonment. But if the decretal amount is not paid off then he has to suffer civil imprisonment up to 6 (six) months…….(6)
Artha Rin Adalat Ain (VIII of 2003)
Section 34
The words and phrases full term (cwic~Y© †gqv‡`i Rb¨) for every reason shall imply only and only a period of 6(six) months. There is no ambiguity in the statute on that score. So other interpretation can be given other than, this. It is the only literal interpretation which can be well perceived from the scheme of Section 34 of Ain, 2003 as whole.
If the decretal amount cannot be realized during the said period of 6 (six) months, the incumbent shall have to be in civil custody till completion of 6 (six) months period of civil imprisonment nothing more, nothing less.
..........(7 & 8)
Shahjada Al-Amin Kabir, Advocate-For the Petitioner.
None Appears -For the Respondents.
Judgment
Md Ashfaqul Islam J: This Rule under adjudication issued on 25-2-206 was in the following terms:
"Let a Rule Nisi be issued calling upon the respondents to show cause as to why the impugned Order No.109 dated 19-10-2015 in Artha Jari Case No.206 of 2003 corresponding to Money Execution Case No.17 of 2000 arising out of Money Suit No.149 of 1993 passed by the respondent No.1, the learned Judge of Artha Rin Adalat, Chittagong in violation of Section 34 of the Artha, Rin Adalat, Ain, 2003 should not be declared as without lawful authority and is of no legal effect."
2. The background leading to the Rule, in short, is that the, petitioner as plaintiff field the Money Suit being No.l49 of 1993 in the Court of 1st Artha Rin Adalat and Sub-Judge Chittagong against the respondent Nos.2-6 for recovery of Taka 63,41,907.71 (sixty three lac forty one thousand nine hundred seven taka and seventy one paia). Respondent, Nos.2-6 herein as defendant contested the suit by filing written statement and after hearing the parties and considering the evidence on record the court decreed the suit in favour of the petitioner-bank. The decree was put into execution in Money Execution Case No.17 of 2000. Be it mentioned that with the introduction of Artha Rin Adalat Ain, 2003, as it appears from the supplementary affidavit filed by the petitioner, the said Money Execution Case was renumbered as Artha Jari Case No.206, of 2003. However, in the said Execution Case the petitioner bank filed an application under Section 34 of the Artha Rin Adalat Ain, 2003 seeking warrant of arrest against the respondents and by the impugned order No.l09 dated 19-10-2015 the Adalat allowed the application passing an order of civil imprisonment against the judgment debtor. Being aggrieved by the order of civil imprisonment mainly on the ground that the Artha Rin Adalat absolutely misconstrued the provisions of Section 34(1) and Section 34(3) and misdirected itself in passing the order impugned against.
3. Mr Shahjada Al-Amin Kabir, the learned counsel for the petitioner-bank after placing petition and the impugned-order mainly submits that in terms of the provision of civil imprisonment under Artha Rin Adalat Ain, 2003 there is no scope to award sentence for different period other than the fixed period of 6 (six) months in tenus of Section 31 (l) read with Section 34(3) of the Ain. The learned counsel further submits that the Court below absolutely in misconception of law fell in an error and passed the impugned order.  
4.The Rule is not opposed by filing any affidavit in opposition by the respondents.
5. Be that as it may, we have heard, the learned counsel for the petitioner and considered his submissions. We have also perused the impugned order and other materials on record. For better appreciation of the issue 'let us quote ordering part of the impugned order in verbatim.
"Hence
Ordered
That judgment debtor No.1 i.e. 2 Md Shajahan Molla, S/o- Late Alhaj Md Jarpal Uddin Mollah, 3) Md Shah Imran Mollah, S/o- Do, 5) Md Jajul Islam Mollah, S/o- Do, 6) Md Nurul Islam Mollah; S/o-Do, all of 44, Asadgonj, PS Kotwali, District-Chittagong each be sentence to eivil imprisonment for a period of 3 (three) months and 4) Sabur Nasa Begum, W/o-Late Alhaj Jamal Uddin Mollah, 44, Asadgonj, PS-Kotwali, Dist-Chittagong be sentenced to civil imprisonment for a period of 10 (ten) days."
"Let us now go, through the law on the issue. Section 34(1) of Ain stipulates:-

“৩৪ (১) উপধারা (১২) এর বিধান সাপেক্ষে অর্থঋণ আদালত, ডিক্রিদার কর্তৃক দাখিলকৃত দরখাস্তে পরিপ্রেক্ষিতে, ডিক্রির টাকা পরিশোধের বাধ্য করিবার প্রয়াস হিসাবে, দায়িককে ৬(ছয়) মাস পর্যন্ত দেওয়ানী কারাগারে আটক রাখিতে পারিবে।
(২) ..............
(৩) জারী মামলা কোন কোম্পানী (ঈড়সঢ়ধহু) যৌথ কারবারী প্রতিষ্ঠান (ঋরৎস) অথবা অন্য কোন নিগমবন্ধ সং¯'া (ঈড়ৎঢ়ড়ৎধঃব ইড়ফু) এর বিরুদ্ধে কার্যকর করিতে বিবাদী-দায়িককে দেওয়ানী কারাগারে আটক করা আবশ্যক হইলে, উল্লিখিত কোম্পানী, যৌথকারবারী প্রতিষ্ঠান বা নিগমবন্ধ সং¯'া আইন বা বিধি মোতাবেক যে সকল স্বাভাবিক ব্যক্তির (ঘধঃঁৎধষ চবৎংড়হ) সমন্বয়ে গঠিত বলিয়া গণ্য হইবে, সেই সকল ব্যক্তি এককভাবে ও যৌথভাবে দেওয়ানী কারাগারে আটকের জন্য দায়ী হইবেন।
(৪) .................
(৫) উপধারা (১) বা (৩) এর অধীনে দেওয়ানী কারাগারেও আটক কোন ব্যক্তি, ডিক্রির দাবী সম্পূণূরূপে পরিশোধ না করা পর্যন্ত, অথবা ৬ (ছয়) মাসের সময়সীমা অতিক্রম না হওয়া পর্যন্ত, যাহা পূর্বে হয়, দেওয়ানী কারাগার হইতে মুক্তি লাভ করিবে না, এবং ডিক্রির সম্পূর্ণ টাকা পরিশোধ করার সঙ্গে সঙ্গে আদালত তাহাকে দেওয়ানী কারাগার হইতে মুক্তির নির্দেশ প্রদান করিবে।
(৬) --- (১১) ......
(১২) এই আইনের অধীনে কোন ডিক্রি বা আদেশ বাস্তবায়নের উদ্দেশ্যে পরিচালিত জারী মামলায়, জারী মামলার সংখ্যা একাধিক হইলেও, কোন একজন দায়িককে গ্রেফতার করিয়া পুরিপূর্ণ মেয়াদের জন্য একবার দেওয়ানী কারাগারে আটক রাখা হইলে, তাহাকে পুনর্বার গ্রেফতার করা ও দেওয়ানী কারাগারে আটক করা যাইবে না।
6. If we read Section 34(1) and 34(5) together we find that the Artha Rin Adalat Ain, which is a special law, specifically fixed the maximum period of sentence up to which a person can be detained in the civil imprisonment is 6 (six) months. This is the maximum sentence and also the minimum because if we glean Section 34(1) which enjoins that a person can be detained in the civil jail up to 6 (six) months and then Section (5) of Section 34 clearly provides for two situations in a disjunctive manner-(l) that a person can be confined in the civil jail till the  realization of the entire decretal amount or (2) till serving 6 (six) months in the custody, whichever is earlier, that is to say that if a person has been detained in the civil custody for a period of 6 (six) months and during the said period, the decretal amount has been paid up in its entirety then at once he will be released from the civil imprisonment. But if the decretal amount is not paid off then he has to suffer civil imprisonment up to 6 (six) months.
7. To be more precise, if the decretal amount cannot be realized during the said period of 6 (six) months, the, incumbent shall have to be in civil custody till completion of 6 (six) months period of civil imprisonment nothing more, nothing less.     
8. Then again Section 34(12) further fortifies the said scheme of law, since it clearly spell out that no person shall be arrested and confined in Civil Prison again, if the said person has already served in Civil Prison for a full term. I have also underlined the Bengali word “পরিপূর্ণ মেয়াদের জন্য” as above. Therefore, the words and phrases full term “পরিপূর্ণ মেয়াদের জন্য” for every reason shall imply only and only a period of 6(six) months. There is no ambiguity in the statute on that score. No other interpretation can be given other than this. It is the only literal interpretation which can be well perceived from the scheme of Section 34 of Ain, 2003 as a whole. The Court below certainly misdirected itself in construing the said provisions and committed an error of law by awarding sentence of civil imprisonment in different terms which should have been 6 (six) months for all the 4 (four) respondents.
9. In the result, the Rule is made absolute. The order impugned is declared to have been passed without lawful authority having no legal effect and set aside. The case is, being sent back to the Court below to give a fresh decision, in the light of observations as made above and also taking into consideration other provisions of Section 34 of the Ain, 2003 within 30 (thirty) days on receipt of this order without fail. There will be no order as to cost.

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