Court not obliged to sell property ignoring objection of the decree-holder
(From previous issue) :
14. In the present case before us the auction notice was published in “The Daily Jugantar” as per Section 33(1) of the Ain, 2003 for selling the mortgaged property mentioning estimated value of the property at Taka 11,00,000. On 27-10-2005, the date of auction sale, 3 (three) bidders participated in the bid with their respective price and the highest offer was made by the respondent No.3 at Taka 3,00,000. On the very day, the petitioner filed an application raising objection to the offered price on the ground that the price was abnormally low and the petitioner prayed for cancelling the auction sale. It further appears that the Adalat rejected the said prayer assigning the reason that he was required to dispose of the execution case by 150 days as per section 37 of the Ain, 2003. By filing affidavit-in-opposition the borrower (respondent No.5) also submits that the offered price of the property is exorbitantly low.
15. Proviso to Section 33(2) of the Ain, 2003 empowers the Adalat to cancel the proposal of the bidder if the offered price of the property is found abnormally low. In this case, admittedly the estimated value has been shown in the auction notice at Taka 11,00,000. Therefore, the highest offer at Taka 3,00,000, on the face of it, appears to be abnormally low. Moreover, the borrower, as the land owner also admits that the price is shockingly low. In the circumstances, the Adalat ought to have rejected the bidders offer at Taka 3,00,000 instead of accepting it by the impugned order dated 27-10-2005. It also appears that in passing the impugned order, the Adalat did not discuss about the value of the property, inspite of the fact that the petitioner raised objection specifically about the price. Further it has already been settled by a good number of cases that provision of section 37 of the Ain, 2003 regarding time limit for disposing of the execution case, is not mandatory rather it is directory. The Adalat misconceived the legal position and thereby considering the time frame for disposing of the execution case rejected the application for canceling the auction sale accepting the objected low price. Thus, the impugned order suffers from gross illegality and, as such, it is liable to be interfered by this Court.
16. We also find that Section 33 of the Ain, 2003 has provided, the alternative provisions for disposing of the judgment-debtor’s property towards satisfaction of the decretal dues. In this process, if the Adalat fails to hold the auction in pursuance of the Section 33(1)-33(4) of the Ain, 2003, the law empowers the Adalat to issue certificate of possession in respect of the property under Section 33(5) of the Ain, 2003 and that the decree-holder taking possession and control over the property, can sell it following the provisions of sections 33(1)-33(4) of the Ain, 2003. Besides, on the prayer of the decree holder, the Adalat can issue certificate of title in favour of the decree holder in respect of the property as provided in Section 33(7) of the Ain, 2003 following the conditions as laid down in the said sub-section.
17. Therefore, the Adalat is not obliged to sell the property in any manner or at any price for satisfaction of the decree, particularly when the decree holder specifically raises objection to the highest offer being abnormally low and that the amount is too inadequate to satisfy the decretal dues.
18. In view of the above discussions, we are led to hold that the Adalat committed error of law, apparent on the face of the record, in passing the impugned order dated 27-10-2005 and, as such, it warrants interference by this Court.
In the result, the Rule is made absolute in part. The order dated 27-10-2005 passed by the Adalat (respondent No.2) in Mortgage Execution Case No. 123 of 2003 (Annexure-C/1 to the supplementary affidavit of the writ petition) is hereby declared to have been passed without lawful authority and is of no legal effect.
(Concluded)
14. In the present case before us the auction notice was published in “The Daily Jugantar” as per Section 33(1) of the Ain, 2003 for selling the mortgaged property mentioning estimated value of the property at Taka 11,00,000. On 27-10-2005, the date of auction sale, 3 (three) bidders participated in the bid with their respective price and the highest offer was made by the respondent No.3 at Taka 3,00,000. On the very day, the petitioner filed an application raising objection to the offered price on the ground that the price was abnormally low and the petitioner prayed for cancelling the auction sale. It further appears that the Adalat rejected the said prayer assigning the reason that he was required to dispose of the execution case by 150 days as per section 37 of the Ain, 2003. By filing affidavit-in-opposition the borrower (respondent No.5) also submits that the offered price of the property is exorbitantly low.
15. Proviso to Section 33(2) of the Ain, 2003 empowers the Adalat to cancel the proposal of the bidder if the offered price of the property is found abnormally low. In this case, admittedly the estimated value has been shown in the auction notice at Taka 11,00,000. Therefore, the highest offer at Taka 3,00,000, on the face of it, appears to be abnormally low. Moreover, the borrower, as the land owner also admits that the price is shockingly low. In the circumstances, the Adalat ought to have rejected the bidders offer at Taka 3,00,000 instead of accepting it by the impugned order dated 27-10-2005. It also appears that in passing the impugned order, the Adalat did not discuss about the value of the property, inspite of the fact that the petitioner raised objection specifically about the price. Further it has already been settled by a good number of cases that provision of section 37 of the Ain, 2003 regarding time limit for disposing of the execution case, is not mandatory rather it is directory. The Adalat misconceived the legal position and thereby considering the time frame for disposing of the execution case rejected the application for canceling the auction sale accepting the objected low price. Thus, the impugned order suffers from gross illegality and, as such, it is liable to be interfered by this Court.
16. We also find that Section 33 of the Ain, 2003 has provided, the alternative provisions for disposing of the judgment-debtor’s property towards satisfaction of the decretal dues. In this process, if the Adalat fails to hold the auction in pursuance of the Section 33(1)-33(4) of the Ain, 2003, the law empowers the Adalat to issue certificate of possession in respect of the property under Section 33(5) of the Ain, 2003 and that the decree-holder taking possession and control over the property, can sell it following the provisions of sections 33(1)-33(4) of the Ain, 2003. Besides, on the prayer of the decree holder, the Adalat can issue certificate of title in favour of the decree holder in respect of the property as provided in Section 33(7) of the Ain, 2003 following the conditions as laid down in the said sub-section.
17. Therefore, the Adalat is not obliged to sell the property in any manner or at any price for satisfaction of the decree, particularly when the decree holder specifically raises objection to the highest offer being abnormally low and that the amount is too inadequate to satisfy the decretal dues.
18. In view of the above discussions, we are led to hold that the Adalat committed error of law, apparent on the face of the record, in passing the impugned order dated 27-10-2005 and, as such, it warrants interference by this Court.
In the result, the Rule is made absolute in part. The order dated 27-10-2005 passed by the Adalat (respondent No.2) in Mortgage Execution Case No. 123 of 2003 (Annexure-C/1 to the supplementary affidavit of the writ petition) is hereby declared to have been passed without lawful authority and is of no legal effect.
(Concluded)