MAHBUBUR RAHMAN Vs. AGRANI BANK

JUDGEMENT

(1.) This petition for leave to appeal is directed against the judgment and order dated 2-7-2001 passed by the High Court Division in FMA No. 549 of 2001 summarily rejecting the appeal filed against the judgment and order dated 22-4-2001 of the Subordinate Judge, Artha Rin Adalat No. 1, Dhaka in Miscellaneous Case No. 2 of 1999.

(2.) The petitioners filed Title Suit No. 34 of 1996 for declaration that the heba-bil-ewaj executed in favour of respondent No. 2 was cancelled by a registered instrument and thus respondent No. 2 had no right, title and possession in the suit land. The suit was decreed ex parte on 21-2-1998. On 14-10-1998 the officer of respondent No. 1 told respondent No. 2 that he took loan from bank by mortgaging his land and the property would be put to auction for failure to repay the loan. The petitioner thereupon filed Miscellaneous Case No. 2 of 1999 under Order XXI rule 58(2) read with section 151 of the Code of Civil Procedure, when the case was taken up for hearing the petitioners sought adjournment but the prayer was rejected. Ultimately, as none appeared the Miscellaneous Case was dismissed. The petitioners moved the High Court Division in First Miscellaneous Appeal Tender No. 548 of 2001 and the same was taken up for hearing but was dismissed summarily by the impugned order.

(3.) Mr. Shaheed Alam, learned Advocate appearing for the petitioners submits that the High Court Division did not appreciate that filing lawyer of the petitioner became a penal lawyer of respondent No. 1 and was not in a position to conduct the hearing of the case on behalf of the petitioner, and that petitioner had to engage another lawyer who prayed for time for preparation of the case but the learned Subordinate Judge most illegally dismissed the case without giving any opportunity to the appellant. Learned Advocate next submits that High Court Division wrongly dismissed the appeal summarily when petitioner stated that they filed an application under Order XXI rule 58(2) of the Code of Civil Procedure as their property was wrongly put to auction and they made out a case for proper and fair adjudication, the Miscellaneous case should not have been dismissed without giving a chance to the petitioner.