(Civil)
Syed Mahmud Hossain CJ
Md Imman Ali J
Hasan Foez Siddique J
Mirza Hussain Haider J
Parvin Akter and others ….. Petitioners
vs
Eastern Bank Ltd.
and others …………..
… … … Respondents·
Judgment
February 25th, 2018
Artha Rin Adalat Ain (VIII of 2003)
Section 7(1)
Where substituted service was done by publication in the newspaper, the presumption of the service cannot be rebutted by making simple statement. ……….(10)
Code of Civil Procedure (V of 1908)
Order I, rule 10
Artha Rin Adalat Ain (VIII of 2003)
Sections 6(3) and 57
Section 6(5) of the Ain and Order I, rule 10 of the Code have got no relevancy in connection with a disposed of suit. It is true that no Court can be regarded as powerless to recall an order in an under trial case pending before it if it is convinced that the order is wangled through fraud or misrepresentation but pre-condition is that such proceeding must be pending before it. The Court must have jurisdiction over the proceeding before it can exercise any inherent power. The Adalat was not justified in resorting its power under Section 57 of the Ain to reopen the decree after dispose of the suit. . ….. (11)
Rokanuddin Mahmud, Senior Advocate, instructed by Bivash Chandra Biswas, Advocate-on-Record-For the Petitioners.
Joinul Abedin, Advocate instructed by Md Taufique Hossain, Advocate-on-Record-For the Respondents.
Judgment
Hasan Foez Siddique J : This civil petition for leave to appeal is directed against the judgment and order dated 1-12-2015 passed by the High Court Division in Writ Petition No . 15897 of 2012 the Rule absolute.
2. Short facts, for the disposal of this petition, are that the present respondent, Eastern Bank Limited as plaintiff instituted Artha Rin Suit No. 145 of 2005 before the Artha Rin Adalat, Chittagong on 30-11-2005 for realisation of defaulted loan of a sum of Taka 3,47,90,251.12 and interest therewith. The said suit was decreed on 29-6-2011. The decree holder bank, thereafter, filed Artha Rin Execution Case No. 80 of 2011 for execution of the said decree. On 25-4-2012, the petitioners namely Parvin Akter, Md Zobair, Md Shafiqul Alam and Nasreen Akhter, the defendants No. 2(a) to 2(d), filed application before the Artha Rin Adalat under the provisions of Sections 6(5)/57 of the Artha Rin Adalat Ain (the Ain) read with Order I, rule 10 of the Code of Civil Procedure stating that mortgage deed and power of attorney alleged to have been executed in favour of the Bank by their predecessor late Farid Ahmed were forged and collusive one and that the aforesaid decree was obtained against dead man and the same was without jurisdiction.
It was stated in the said application that the defendant No.2 Farid Ahmed died on 26-7-1996 and his heirs, the petitioners, have been possessing the disputed land. Farid Ahmed died before execution of the mortgage deed and power of attorney in favour of the bank. The Exhibit-2 mortgage deed and Exhibit-2(Ka) power of attorney were forged and collusive documents. So, the names of the petitioners should be struck up from the category of defendants and Schedule B-(A) property to the plaint should be excluded from the decree upon modifying the same.
3. The Adalat, by its order No. 16 dated 30-8-2012, allowed the said application against which, the bank filed instant writ petition and obtained Rule. Finally, the High Court Division, by the impugned judgment and order, made the said Rule absolute upon setting aside the order dated 30-8-2012 passed by the Adalat.
4. Thus, the defendant Nos. 2(a) to 2(d) leave Petitioners have filed this petition for leave to appeal.
5. Mr Rokanuddin Mahmud, learned Senior Counsel appearing for the petitioners, submits that the leave petitioners are the heirs of defendant No.2 Farid Ahmed who died before execution of the mortgage deed, power of attorney in favour of the bank and filing of the suit. He submits that without serving any notice upon the heirs of deceased, defendant No.2, the hank managed to get exparte decree against them and made an attempt to the said decree executed. He further submits that there is specific finding of the Adalat as to fraudulent nature of the decree so far the same relates to the defendant No. 2(a)-2(d) and accordingly, it excluded the names of the petitioners and their property from the decree upon modifying the same, the High Court Division erred in law in making the Rule absolute.
6. Mr Joinul Abedin, learned Advocate-on-Record appearing for the respondent bank, in his submission, supported the judgment and order of the High Court Division.
7. It appears from the materials on record that the respondent-bank instituted the aforesaid Artha Rin Suit on 30-11-2005 impleading I. SM Amzad, 2. Farid Ahmed, 3. SM Solaiman and 4. NM Jahangir as defendant Nos. 1-4 respectively. From the order No. 3 dated 24- I -2006 of the Artha Rin Suit it appears that the defendant No. 1 informed the Adalat that the defendant Nos. 2-4 died before institution of the suit. Order No.6 dated 21-3-2006 shows that the plaintiff-bank filed an application before the Adalat for a direction upon the defendant No. 1 to supply the names and particulars of the heirs of the deceased defendants. Accordingly, the Adalat directed the defendant No. I to supply the names and particulars of the heirs of deceased defendant Nos. 2-4 by an order dated 27-3-2006. On 20-4-2006, the defendant No. 1 filed an application for recalling the order directing to furnish the names of the heirs and particulars of the defendant Nos. 2-4. The Adalat, by its order dated 15-5-2006, the defendant No. 1 filed an application before the Court for noting order of abatement of the suit against the defendant Nos. 2-4 which was rejected by the Adalat on 2-8-2006. It further appears from order No. 31 dated 26-4-2007 that the bank made a statement in the Court that the defendant Nos. 24 were the close relatives of the defendant No. 1 so, defendant No.1 is well conversent with the names and particulars of the heirs of deceased defendant Nos. 2-4. Then, the Adalat again directed the defendant No. I to furnish the names and particulars of the heirs of the deceased defendant Nos. 2-4. From order dated 7-5-2007 it appears that the defendant No. I, by filing an application, informed the Adalat that the defendant Nos. 2 and 4 were not his close relatives. He further stated that he had no relationship with his father, the defendant No.3. In view of such circumstances, the bank officials, collecting the names and particulars of the heirs of deceased defendant Nos. 2-4, filed an application for adding their names as defendants which was allowed.
Accordingly, the heirs of deceased defendant No.2, that is, the petitioners were added as defendant Nos. 2(a)-2(d). Heirs of deceased defendant No. 3 were added as defendant Nos. 3(a) to 3(c) and heirs of deceased defendant No.4 were added as defendant Nos. 4(a) to 4(c). On 19-7-2007, the Court issued summons upon those added defendants. On 12-7-2007, the added defendant Nos. 4(a) to 4(c) appeared in the suit and the Adalat directed to serve notice upon added defendants Nos. 2(a) to 2(d) and 3(a) to 3(c) by way of paper publication in the ‘Daily Samachar’ and ‘Daily Ajker Chattagram’. From order No. 50 dated 14-5-2008, it appears that the defendant Nos. 3(a) to 3(d) appeared in the suit. Inspite of publication of the notice in the two· daily newspapers, the added defendant Nos. 2 (a) to 2(d) did not appear in the suit. The court, after recording the evidence of the parties who appeared in the suit, decreed the suit on 29-6-2011. The bank, thereafter, filed Artha Rin Execution Case No. 80 of 2011 before the Artha Rin Adalat No. I, Chittagong for executing the decree claiming a total sum of Taka 6.11,26,752.73 as on 30-11-2011 against the present petitioners and others. At this stage, the petitioners appeared in the case and filed the instant application.
8. In course of hearing of the matter, we called for the record of Artha Rin Suit No. 145 of 2005. On perusal of the record, it appears that the process server upon serving the notice upon defendant Nos. 2(a) to 2(d) submitted report stating.
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(To be continued)
9. Such substituted service cannot be regarded as idle formality. The law intends it as a substitute to actual personal service. Moreover it appears from the record that the ‘Dainik Ajker Chattagrami, in its issue dated 18-8-2007 and the ‘Dainik Samachar’ its issue dated 21-8-2007 published the notice regarding pendency of the aforesaid suit wherein the present petitioners were shown as defendants and it was stated that the instant suit is pending against them. It is relevant here to quote the special provision of serving notice upon the defendants in a Artha Rin Suit provided in Section 7(I) of the Artha Rin Adalat Ain which runs as follows:
“?(?) ????? ? ???? ???? ??? ???? ???? ????? ????? ?? ???, ???? ??????? ??????? ????”? ??? ???????? ????????? ????????????? ??????? ???????? ???????, ????? ???? ??? ???? ???? ????? ?????? ????? ????? ??????, ??? ????? ???????? ?????? ????? ????? ???????? ??????, ??? ??? ?????? ?? (????) ?????? ????? ???? ???? ???? ?? ???, ???? ????????? ???? ?????? ???? ???, ???? ???? ????? ???? ??????? ?? (????) ?????? ????? ????? ????? ?? ??? ???? ???? ????????? ????? ????? ????? ????????, ??? ?????? ???? ¯’???? ????????, ??? ????, ??? ????? ??? ????? ??????? ???????? ????????? ??? ???, ???????? ???????? ??????? ??? ???? ???????, ??? ?????? ???? ??????? ???? ????? ???? ?????
10. Aforesaid provision of service of notice in the Ain has been provided so that the defendants get information as to the pendency of the suit. Where substituted service was done by publication in the newspaper, the presumption of the service cannot be rebutted by making simple statement.
11. Moreso, these defendants did not take any step for gelling the exparte decree set aside. The petitioners filed the instant application under Sections 57, 6(5) of the Ain and under the provision of Order I, rule 10 of the Code of Civil Procedure. None of those provisions authorizes the Adalat to modify decree. Section 6(5) of the A in and order I Rule 10 of the Code have got no relevancy in connection with a disposed of suit. It is true that no Court can be regarded as powerless to recall an order in an under trial case pending before it if it is convinced that the order is wangled through fraud or misrepresentation but pre-condition is that such proceeding must be pending before it. The Court must have jurisdiction over the proceeding before it can exercise any inherent power. The Adalat was not justified in resorting its power under Section 57 of the Ain to reopen the decree after disposing of the suit. The instant Artha Rin Suit has been disposed of exparte against the defendant Nos. 2(a) to (d) and on contest against the rest. Inherent power of the Adalat in Section 57 of the Ain should be exercised subject to the Ain that if the Ain does not contain specific provision which would meet the necessities of the provision should be followed and inherent jurisdiction should not be invoked. The Ain provides express provision against ex-parte decree to get the same set aside but the petitioners, without resorting to such procedure, in fact, made an attempt to get the decree modified bringing application under 57 of the Ain which is not permissible.
12. Since a competent court of law passed the decree against the petitioners who did not appear in the said suit for contesting the same, we are of the view that it is difficult for this Division to disturb the conclusion arrived at by the High Court Division.
13. Accordingly, we do not find any wrong in the judgment and order of the High Court division, which calls for any interference by this Division.
Thus, the petition is dismissed.