Artha Rin Adalat Ain 2003

Mortgaged ejmali property can be sold to realize decretal amount

29 February 2020


High Court Division :
(Special Original Jurisdiction)

JBM Hassan J
Md Khairul Alam J
Pubali Bank Limited…………..Petitioner
                          vs
 Judge, Artha Rin Adalat, Cox's Bazar and others…Respondents.

Judgment January 3rd, 2019  
Artha Rin Adalat Ain (VIII of 2003)
Schedule 2(2)-2(6)
In absence of any property exclusively mortgaged by the principal debtor in favour of the Bank, the ejmali property mortgaged by the principal borrower and others jointly is to be sold to realize the decretal amount. The Adalat was bound to sell ejmali property jointly mortgaged by the principal borrower and others in absence of any other property exclusively mortgaged by the principal debtor…………..(9)
Miah vs Bangladesh 14 BLC 412 ref.
Md Nazmul Haque, Advocate-For the Petitioner
None appears-For the Respondents.
Judgment
Md Khairul Alam J: At the instance of the petitioner, Pubali Bank Limited, this Rule Nisi was issued calling upon the respondents to show cause as to why the impugned order No. 16 dated 13-7-2010 and order No. 42 dated 6-11-2014 passed by the learned Judge, Artha Rin Adalat, Cox's Bazar allowing an application filed by the respondents No.4-10, 12 and 13 under Section 6(5) of the Artha Rin Adalat Ain, 2003 and rejecting an application filed by the petitioner to set-aside the order No. 16 dated 13-7-2016 respectively in Artha Rin Execution Case No.4 of 2009 should not be declared to be without lawful authority and of no legal effect.
2. Relevant facts for disposal of the Rule, in short, are that the respondent No. 2-M/s Gold Fisheries, a proprietorship concerned of respondent No. 3-Meheruzzaman, engaged in fish processing business, in course of its business, obtained loan from the petitioner, Pubali Bank Limited, Cox's Bazar Branch, Cox's Bazar (shortly, the Bank). As a security to the loan Meheruzzaman and other mortgaged properties in favour of the Bank. Meheruzzaman and other also executed personal guarantees and other charge documents i.e. demand promissory note, delivery letters, etc. in favour of the Bank. The loanee failed to repay the loan. The Bank requested the principal borrower-Meheruzzaman and others to adjust the loan, but they did not pay any heed to the said request. In such circumstances, the Bank, as plaintiff instituted Artha Rin Suit No.8 of 2005 before the Artha Rin Adalat, Cox's Bazar (shortly, the Adalat) impleading the respondents No.2 to 13 as defendants of the suit for realization of loan amounting to Taka 1,16,36,648.07 as stood on 1-4-2005 along with interest till realization thereof. Ultimately, the suit was decreed ex-partee on 21-4-2013. The Bank being the decree-holder put the decree in execution by filing Execution Case No. 4 of 2009. In the execution case the respondents No. 4-10, 12 and 13 filed an application under Section 6(5) of the Artha Rin Adalat Ain, 2003 (the Ain, 2003) to attract the property owned by the principal borrower before selling the properties of the applicants and said application  was allowed by the Adalat on 13-7-2010 The petitioner filed an application on 29-6-2011 for cancellation of the order dated 13-7-2010 but said application was rejected on 6-11-2014 Challenging both the orders dated 13-7-2010 and 6-11-2014 the petitioner moved before this Court and obtained the present Rule and an interim order of stay.
3.    None appears to oppose the Rule.
4.    Mr Md Nazmul Haque, the learne Advocate appearing for the petitioner, submit that the principal borrower and the 3rd party guarantors of the credit facilities are co-sharers and they became the owners of the land in question as described in the schedules No. 2(2)-2(6) of the plaint by way of inheritance and they kept the property in their ejmali enjoyment. Therefore, Section 6(5) of the Ain, 2003 is not applicable in the present case. He further submits that the respondents failed to substantiate his claim before the Adalat by any document that the principal borrower is the exclusive owner of any property. He then submits that the impugned order No. 16 dated 13-7-2010 passed by the learned Judge, Artha Rin Adalat, Cox's Bazar in Artha Rin Execution Case No.4 of 2009 contrarily to the Section 52A of the Registration Act, 1908 and Section 53C of Transfer of Property Act, 1882. He further submits that the Adalat failed to appreciate that the scheduled properties are not partitioned and thereby, committed error of low directing to sell, 27decimals of land from the scheduled properties mentioning the same as the properties of the principal borrower and thereby excluding rest of the properties from the proceeding of sale in auction mentioning the same as the properties of the 3rd party guarantors.
5. We have gone through the writ petition, supplementary affidavit and perused the documents annexed thereto.
 6. The impugned order was passed allowing an application filed by the judgment debtor under Section 6(5) of the Ain-2003, for proper appreciation of the said order the provision of Section 6(5) is reproduced herein below:
 “? ? ????? ??????? (?)
(?) ?????? ?????????? ??? ?? ???????? (????????? ??????) ???????? ????? ????? ???? ???, ????? ???? ?????????  (????? ????? ?????????) ?? ????? ???? ??????????? (????? ????? ?????????) ???? ???? ????????? ??????, ???????? ?????? ???? ?????; ??? ????? ?????? ????? ???, ???? ?? ??????, ??? ??????? ???????? ??????? ? ?"??????  (????? ??? ?????????) ??????? ???? ??? ?????? ????? ????? ??? ??????-??????? ???????? ??????? ???????? ???? ?
??? ???? ???? ??, ?????? ????? ??????? ???? ???? ????? ???????? ????? ?????? ??? ?????????-??????? ??? ????? ???????? ????? ???? ????????? (????? ????? ?????????) ? ????? ???? ???????????  (????? ????? ?????????) ?? ???????? ????? ????? ?????? ????? ?
??? ???? ???? ??, ????? ??????? ????? ??????? ???? ????? ???? ????????? (????? ????? ?????????) ???? ????? ???? ??????????? (????? ????? ?????????) ?????? ????? ?????? ???? ?????? ???????? ??????? ??????? ¯'????????? ???? ??? ?????? ??? ?????????? (????????? ??????) ???????? ??? ?????? ?? ???? ????? ??????? ?”
7. In the case of Abdus Sattar Miah vs Bangladesh reported in 14 BLC 412 the issue of Section 6(5) of the Ain, 2003 was involved and this Court settled the issue in the following manner:
"In our considered view, this provision is applicable only when the properties were mortgaged both by the principal debtor/loanee and the third party mortgagor. In the instant case, admittedly no property was mortgaged by the principal debtor-loanee but the property was mortgaged by the petitioner. So in absence of any other property mortgaged by the principal debtor in favour of the Bank, the mortgaged property of the petitioner-judgment-debtor is to be sold to realize the decretal amount. Therefore, the Adalat was bound to sell the mortgaged properly which was included in the schedule of the plaint/decree".
8. Admittedly, in the instant case, the property described in schedule No. 2(1) of the plaint is exclusively owned by the 3rd. party mortgagor but rest of the mortgaged properties described in schedules No. 2(2)-2(6) are the paternal properties of the defendants of the suit and the principal borrower owning and possessing the same jointly with the other defendants. From the annexure-L, it is evident that the principal borrower and other defendants jointly executed mortgaged deed No. 3126 dated 24-10-2000 in respect of 1.62 acres of lands, which are undivided; un-demarcated paternal properties owned by them by inheritance, Said properties are not partitioned by metes and bounds till today but the Adalat misconstrued the provision of Section 6(5) of the Artha Rin Adalat Ain, 2003 and thereby passed the impugned order directing to sell 0.27 acres of land from 1.62 acres of scheduled land. The properties described in 2(2)-2(6) scheduled of the plaint are the paternal properties of the defendants of the suit and the same is still undivided, un-demarcated, joint property and in an Artha Rin Suit the Adalat has no authority to partition the undivided, undemarcated, joint property amongst the co-sharers. Section 6(5) of the Ain, 2003 does not put any bar to sell any ejmali/joint property mortgaged by the principal borrower with the 3rd party guarantor in absence of any property mortgaged by the principal borrower exclusively owned by him.
9. So in absence of any property exclusively mortgaged by the principal debtor in favour of the Bank, The ejmali property mortgaged by the principal borrower and others jointly is to be sold to realize the decretal amount. Therefore, the Adalat was bound to sell ejmali property jointly mortgaged by the principal borrower and others [schedule 2(2)-2(6)] in absence of any other property exclusively mortgaged by the principal debtor.
10. In view of the above discussions, we I find substance in the submissions of the learned Advocate for the petitioner to that effect.
11. Considering the facts and circumstances stated hereinbefore, we find merit in the Rule.
12.    Accordingly, the Rule is made absolute.
13.    The impugned Order No. 16 dated 13-7-2010 passed by the learned Judge, Artha Rin Adalat, Cox's Bazar allowing the application filed by the respondents No.4-10, 12 and 13 under Section No. 6(5) of the Artha Rin Adalat  Ain, 2003 in Artha Rin Execution Case No.4 of 2009 is hereby declared to have been passed without lawful authority and to be of no legal effect.
14. The order of stay passed at the time of issuance of the Rule is hereby recalled and vacated.
15. The Adalat is directed to proceed with the execution case in accordance with the observation made hereinabove.  
16. There is, however, no order as to costs.  

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