MD. ABDUR ROUF Vs. ARTHA RIN ADALAT

JUDGEMENT

(1.) This petition for leave to appeal is directed against the judgment and order dated 06.01.2009 passed by the High Court Division in Writ Petition No.7729 of 2008 discharging the Rule.

(2.) The facts, in short, are that the respondent No.2-Bank as plaintiff instituted Title Suit No.270 of 1986 in the Court of the learned Subordinate Judge and Commercial Court No.1, Dhaka for realization of Tk.2, 52,268.50 only as on 30.08.1986 by selling the mortgaged property owned by the defendant the present petitioner. The petitioner as first partner of M.S. Standard Radio Emporium borrowed a sum of Tk.2.00 lac as cash credit (Hypothecation loan) from the plaintiff-respondent No.2 Bank. But the petitioner could not repay the loan due to malpractices of other partners and the business of the petitioner collapsed. The respondent No.2 Bank instituted the aforesaid title suit for recovery of money. The defendant petitioner contested the suit by filing written statements. Thereafter the suit was decreed on contest in the preliminary from on 22.03.1989 vide judgment and order dated 12.03.1989 and the final decree was passed on 11.05.1989. The respondent preferred First Appeal No.75 of 1990 against the aforesaid preliminary decree dated 23.03.1989 and final decree dated 11.05.1989. The respondent bank entered appearance in the aforesaid first appeal and the appeal was proceeding accordingly. The learned lawyer for the petitioner failed to take necessary steps for preparation of the paper book as per order dated 24.01.2000 within 12 weeks with a default order to the effect that in default the appeal shall stand dismissed. The petitioner filed an application for restoration of the said First Appeal No.75 of 1990 and the High Court Division was pleased to vacate the dismissal order dated 24.01.2000 and the appeal was restored to its original file and number.

(3.) The respondent Bank filed Title Execution Case No.40 of 1989 on 17.06.1989 in the Court of the learned Subordinate Judge and Commercial Court No.1, Dhaka for recovery of Tk. 3, 95,956.00 only by selling the mortgaged property measuring 9 decimals of land appertaining to C.S. Plot No.804, R.S. Plot No.2923 under C.S. Khatian No.64, D.P. Khatian No.170, Mutation Khatian No.173/2 of mouza, Jatrabari under P.S. Demra at present Jatrabari, District-Dhaka with structures and fixtures standing thereon.