JANATA BANK LTD. DHAKA Vs. BANGLADESH

JUDGEMENT

(1.) On an application under Article 102 of the Constitution this Rule Nisi was issued at the instance of the petitioner-Janata Bank Ltd., Head Office, Dhaka calling upon the respondent No.1, Government of the Peoples Republic of Bangladesh represented by the Secretary, Ministry of Finance and Planning, Secretariat Building, Ramna, Dhaka, respondent No.2, Learned Judge, Artha Rin Adalat No.2, Dhaka, respondent No.3, Bangladesh Krishi Bank Ltd. principal branch at Krishi Bank Bhaban, 83-84 Motijheel, Dhaka, and respondent No.4, Md. Asraf Ali Talukder Proprietor of M/S Asraf Ali, Village and Post Office-Rampur Bazar, P.S-Kalihati, District- Tangail, to show cause as to why the order No. 16 dated 09.09.2012 (as contained in Annexure-E) passed by the Artha Rin Adalat No.2, Dhaka in Artha Jari Case No. 205 of 2011 (Second Execution Case ) arising out of Artha Rin Suit No. 182 of 2003 entertaining the second execution case under section 28(4) of the Artha Rin Adalat Ain, 2003 should not be declared to have been passed without lawful authority and of no legal effect.

(2.) The short facts, relevant for the purpose of disposal of this Rule, are that the respondent no.3 instituted Mortgage Suit No. 49 of 1992 before the Artha Rin Adalat, 2nd Court, Dhaka impleading the petitioner Janata Bank Limited and another as defendants for realization of Tk. 25,68,852.41 as stood on 31.10.1995. Subsequently on transfer the said suit was registered as Artha Rin Suit No. 182 of 2003. Thereafter, after hearing the parties and on consideration of the materials on record the Adalat decreed the suit vide judgment and decree dated 10.02.2005 and the decree was drawn up and signed on the same day. Being aggrieved by the aforesaid judgment and decree dated 10.2.2005, the Janata Bank Limited, as appellant preferred Artha Rin Appeal No. 04 of 2005 before the learned District Judge who transferred the appeal to the learned Additional District Judge, 2nd Court, Dhaka for disposal. The Additional District Judge, 2nd Court, Dhaka after hearing the parties dismissed the appeal on 19.11.2009 with certain modifications of the said judgment and decree. The plaintiff decree-holder thereafter filed Execution Case No. 59 of 2011 on 01.03.2011 to materialize the decree before the Artha Rin Adalat, Second Court, Dhaka. The Adalat after hearing the parties and on consideration of the materials on record rejected the application for execution filed by the decree-holder Krishi Bank vide judgment and order dated 15.6.2011 on the point of limitation since the execution case was not filed within 1(one) year from the date of decree as per the provisions of section 28(2) of the Artha Rin Adalat Ain, 2003 Thereafter, the decree-holder preferred Second Execution Case No. 205 of 2011 on 01.08.2011 before the Artha Rin Adalat, 2nd Court, Dhaka. The petitioner as judgment-debtor contested the execution case and filed an application contending, inter alia, that the first execution case having been rejected on the point of limitation, there was no question of filing the second case for execution of the decree. The Executing Court after hearing the parties rejected the application of the petitioner judgment-debtor and registered the second execution case vide order dated 09.09.2012 (the impugned order). Being aggrieved by and dissatisfied with the aforesaid order dated 09.09.2012 the petitioner approached this Court and obtained the present Rule as stated above. At the time of issuance of the Rule this Court vide order dated 13.05.2013 stayed further proceedings of Artha Jari Case No. 205 of 2011 then pending before the Artha Rin Adalat, 2nd Court, Dhaka for a period of 6(six) months and subsequently on 05.05.2015 the order of stay was extended for a further period of 6(six) months.

(3.) This Rule is contested by respondent no. 3 Bangladesh Krishi Bank Limited through Mr. Shaheen Ahmed, learned Advocate who filed affidavit-in-opposition.