Arab Bangladesh Bank Limited, Motijheel Branch, Dhaka Vs.

The Artha Rin Adalat and others,

2007, 36 CLC (HCD) [9184]
Wednesday, November 11, 2015, 7:43 AM
Supreme Court
High Court Division
(Statutory Original Jurisdiction)
Present:
Mirza Husain Hider J
Farah Maybug J
Arab Bangladesh Bank Limited, Motijheel Branch, Dhaka Petitioner
Vs.
Judge, Artha Rin Adalat No.3, Dhaka and othersRespondents
(Writ Petition No.3016 of 2004)
With
G.M. Quader & anotherPetitioners
Vs.
The Artha Rin Adalat No.4, Dhaka and othersRespondents
(Writ Petition No.5961 of 2004)
Judgment
March 12, 2007.
Result:
The Writ Petition No.3016 of 2004 is discharged and the Writ Petition
No.5961 of 2004 is made absolute.

The statute Artha Rin Adalat Ain, 2003 has given scope to the Adalat to hold
auction more than once under section 33(1) (2) and (3) or under 33(4). The
said view is fortified if we examine section 34(9) of the Ain which reads as
follows:
() ,

meaning that at least one auction sale process is
completed, (under linings are made for giving emphasis).
So the aforesaid subsection categorically says that minimum one sale
process is to be taken place or completed. Adalat has the power to hold
auction sale more than once. There is no scope to hold that more than one
auction sale under the aforesaid provisions is barred.
The statute provides that the auction sale process is to be completed first
under section 33(1),(2),(3) and in case of failure to sell the property under
the said provisions right under section 33(7) can be exercised by the decree
holder not prior to that. Again if the auction sale is complete then section
33(7) cannot be invoked. The right given under section 33(7) is a right given
in favour of the decree holder so that when the property cannot be sold in
auction, and the decretal dues cannot be realized, the interest of the decree
holder is not frustrated. Rather the decree holder can enjoy the benefit of
the decree by enjoying the ownership of the property in any manner as its
lawful owner.. (19-21)
Cases Referred toDr. M.O. Ghani Vs. Dr. A.N.M. Mahmood, 18 DLR (SC) 463 para 20 & 21;
Nagina Silk Mill, Lyallpur Vs. Income tax Officer, 15 DLR (SC) 181; Anisminic
Ltd. Vs. Foreign Compensation Tribunal, [1969] 2 Appeal cases 147(195);
Managing Director, Rupali Bank limited and others Vs. Tafazal Hossain and
others, 44 DLR (AD) 260; AIR 1991 (SC) 1055 (para-5); AIR 1959 (SC) 149
(para 53 and 73); AIR 1965 (SC) 1405 (para 11); AIR 1981 (ISC) 315 (para
150, 151); 48 DLR 1 (Para 30 to 35).
Lawyers Involved:
Azmalul Hossain, with ABM Siddiqur Rahman, Advocates-For the Petitioner
in Writ Petition No.3016 of 2004.
Abdul Wadud Bhuiyan, with Ramzan Ali Sikder, Advocates-For the Respondents No.5 & 6 in Writ Petition No.3016 of 2004.

Abdul Wadud Bhuiyan, with Ramzan Ali Sikder, Advocates-For the Petitioners in Writ Petition No.5961 of 04.
Azmalul Hossain, with ABM Siddiqur Rahman, Advocates-For the Respondent
No.2 in Writ Petition No.5961 of 2004.
Writ Petition No.3016 of 2004 and Writ Petition No.5961 of 2004.
Judgment
Mirza Hossain Haider J.- This two writ petitions having arisen out of the
same facts and relating to the same property which was put into auction and
the respondent No.5 and 6 of the Writ Petition No.3016 of 2004 being the
petitioners in Writ Petition No.5961 of 2004, and the Petitioner of Writ
Petition No.3016 2004 being one of the respondents in Writ Petition No.5961
of 2004, and the Petitioner of Writ Petition No.3016of 2004 being one of the
respondents in Writ Petition No.5961 of 2004 both these Rules are taken up
together and disposed of by this single judgment upon stating the facts and
circumstances chronologically.
2. In Writ Petition No.3016 of 2004, Rule has been obtained by Arab
Bangladesh Bank, a financial institution incorporated under the laws of the
land, calling upon the respondent No.1 i.e. the Judge, Artha Rin Adalat No.3,
Dhaka "to show cause as to why the impugned order No.69 dated
28.10.2003 (Annexure-G) passed by the Artha Rin Adalat No.3, Dhaka,
respondent No.1 in Money Execution Case No.126 of 2000 rejecting the
application filed by the petitioner under Section 33(7) of the Act as well as
for setting aside the order No.63 dated 28.09.2003 (Annexure-F) passed by
the said Court should not be declared to have been made without lawful
authority an of no legal effect.....
3. Facts required for the disposal of the Rule, in short, are that the petitioner
bank instituted Title Suit No.32 of 1996 in the Artha Rin Adalat No.3, Dhaka
against respondent Nos.2, 3, 4 and others as defendants for realisation of
outstanding dues amounting to Tk. 16.69,449.23 as on 31.12.95 and other
necessary reliefs. The suit was ultimately heard and decreed ex parte on
14.11.1999 in favour of the plaintiff bank. The preliminary decree was drawn
up on 18.11.1999 pursuant to the same and the final decree was drawn and
signed on 15.10.2000. The respondent No.1 i.e. the judgment debtor having
failed to adjust the outstanding dues/decretal dues within the stipulated time
as fixed by the Adalat in the decree, the petitioner bank put the said decree
into execution vide Money execution Case No.126 of 2000 for realization of
the decretal dues amounting to Tk. 29,05,334.25 as on 30.11.2000.

4. In the execution case several dates were fixed for sale of the mortgaged
property by auction upon publishing the auction notice in accordance with
law but sufficient bidders having not responded the same could not be sold
at a reasonable price earlier. Then sale proclamation notice was published in
news papers fixing 28.9.2003 as the fresh date for auction when several
bidders participated and respondent Nos.5 and 6 jointly quoted Tk.
20,00,000.00 which was found to be the highest bid and was accepted by
the Adalat. On 26.10.2003 the petitioner bank filed an application under
section 33(2) and section 57 of the Artha Rin Adalat Ain, 2003 read with section 151 of the Code of Civil Procedure praying for cancellation of the bid
dated 28.09.2003 and for taking necessary steps for re-auction of the said
property in accordance with law. The said application was kept for hearing
on 28.10.2003 when the decree holder bank, (the petitioner hearing filed
another application under section 33(7) of the Ain 2003 investing the
property upon the decree holder bank by selling aside the auction. Both the
applications of the petitioner bank were heard and rejected by the executing
Court on 28.10.2003 and accordingly the sale was also confirmed.
Subsequently, the sale became absolute under Order XXI Rule 92 of the
Code of Civil Procedure. Accordingly, sale certificate (Bomanama) was issued
in favour of the respondent Nos.5 and 6. The sale certificate was then sent
for registration to the Sutrapur Sub-Registration Office on 15.11.2003.
5. The petitioner being aggrieved by the aforesaid order of rejection of the
application filed under section 33(2) and (7) of the Ain and also the order of
confirmation of sale by the executing Court dated 28.10.2003, moved this
Court under Article 102 of the Constitution and obtained the present Rule on
12.06.2004 and also obtained an order of stay of the operation of order
No.63 dated 28.9.2003 so far it relates to the acceptance of the bid in
execution case till disposal of the Rule.
6. It is further stated in the aforesaid writ Petition that one Afroza Zaman, a
third party along with another, in the meantime filed Writ Petition No.6536 of
2003 before the High Court Division challenging the aforesaid sale of the
mortgaged property to the present respondents No.5 and 6 on the ground
that the Adalat was wrong in accepting the bid of the present respondents
Nos.5 and 6 since the said writ petitioner Afroza Zaman and another had
proprietary interest in the mortgaged property. The said Rule was contested
by the present respondents Nos.5 and 6 wherein, it was categorically stated
that the bid was duly accepted and confirmed; the bid money was fully paid
up by the purchasers whereupon the sale certificate has already been issued
and registered. However, upon considering the entire facts and
circumstances placed before the Court and upon hearing the parties,
including the decree holder bank (the present petitioner) the rule in Writ

Petition No.6536 of 2003 was discharged by judgment and order dated

15.6.2004.
7. On the other hand the petitioner bank filed another suit being Title Suit
No.97 of 1998 before the Artha Rin Adalat No.4, Dhaka against one Sandra
Enterprises Limited and its Directors and guarantors for realization of Tk. 60,
58,198.08 as on 31.03.1996. The said suit was also decreed ex parte on
22.04.1999 and the decree was put into execution vide Execution Case
No.1257 of 2005. In the said execution case the decree holder bank, (the
present petitioner) included the properties of the present respondent Nos.5
and 6 of Writ Petition No.3016 of 2004, which has earlier been vested in
them pursuant to the auction sale dated 28.09.2003 by the Artha Rin Adalat
No.3, Dhaka in Artha Rin Execution case No.126 of 2000 Having come to
know about the inclusion of their properties in the subsequent execution
case, the respondent Nos.5 and 6 filed an application in Execution Case
No.1257 of 2003 explaining the facts and position of the property and
accordingly, prayed for release of the same as the same cannot be sold in
auction in a subsequent execution case. The Adalat fixed 3.10.2004 for
hearing of the said application and also for steps under section 33(7), 34(1),
33(4) of the Ain, 2003. On 3.10.2004 the decree holder bank, prayed for
time which was allowed by the Adalat fixing 14.10.2004 for steps to be
taken by the decree holder bank as mentioned earlier. On 14.10.2004 the
decree holder bank filed an application under section 33(7) of the Ain, 2003
for vesting the property in favour of the decree-holder and accordingly issue
certificate. The learned Judge of the Adalat by its order dated 14.10.2004
allowed the said prayer of the bank without considering and passing any
order on the application of the respondent Nos.5 and 6 of writ petition
No.3016 of 2004.
8. The said owners (i.e. respondent Nos.5 and 6 of Writ Petition No.3016 of
2004) being aggrieved by the aforesaid order dated 14.10.2004 passed in
Execution Case No.1275 of 2005 moved this Court and obtained the Rule in
Writ Petition No.5961 of 2004 in the following terms:
9. "Let a Rule Nisi be issued calling upon the respondents to show cause as
to why the impugned order dated 14.10.2004 (Annexure-A passed by the
respondent No.1 vesting the petitioners personal property in lavour of the
respondent No.2, purportedly pursuant to section 33(7) of the Artha Rin
Adalat Ain, 2003 should not be declared to have been issued without lawful
authority and to be of no legal effect.
10. On these context the said purchasers (respondent Nos.5 and 6 of Writ
Petition No.3016 of 2004) contested the Rule in Writ Petition No.3016 of
2004 by filing Affidavit-in-opposition contending, inter alia, that the property

in question has been sold in auction earlier pursuant to order passed in

Execution Case No.126 of 2000 and the auction sale has been confirmed and
made absolute on 28.10.2003 and thereafter sale certificate has been
prepared, issued and signed and was sent for registration. The sale having
been affirmed and title having already been vested upon the auction
purchasers and the decree holder bank (the petitioner) having not raised any
objection against the same at the time of acceptance of the bid i.e. at the
very first instance on 24.9.2003, the petitioner cannot get any relief under
the special jurisdiction of this Division without setting aside the sale in
accordance with law. It is further contended in the affidavit-in-opposition
that the order passed by the executing Court, accepting the bid on
28.10.2003 pursuant to which the respondent/auction-purchaser having
deposited the poundess fees and sale certificate being issued and registered
by the Registry Office, the process of, sale has duly been completed. Now,
after 9 months of the sale being confirmed the petitioner (decree holder
bank) moved this writ petition and obtain the present Rule which is not
maintainable. The respondents further stated that the Rule in Writ Petition
No.3536 of 2003, filed by a third party namely, Afroza Zaman challenging
the sale of the mortgaged property to the present respondents Nos.5 and 6
as illegal on the ground to having interest in the said mortgaged property,
being discharged on contest in presence of the decree holder bank the contention of the bank as to asking for certificate under section 33(7) of the Ain
on the same property is not at all tenable in law. Rather the petitioner is
estopped fromasking for any subsequent relief in the said property. It is
further contended that the writ petitioner is not an aggrieved person
because the petitioner did not raise any objection on the highest bid of Tk.
20 lacs at the time of acceptance of the same on 28.9.2003. As such, the
petitioner has waived its right to challenge the same subsequently and the
petitioner bank will not suffer any irreparable loss or injury. Hence, there
being no merit in the Rule, the Rule in Writ Petition No.3016 of 2004, should
be discharged.
11. On the other hand the decree holder bank, who is respondent No.2 in
Writ Petition No.5961 of 2004, filed affidavit-in-opposition therein,
contending, inter alia, that on 17.11.2003 the proceeding of the Execution
Case No.126 of 2000 was stayed by the Artha Rin Adalat pursuant to the
order of the High Court Division passed in Writ Petition No.6536 of 2003 and
as such the sale can never be confirmed during the subsistence of the stay
order and actually was never confirmed. Subsequently, the bank obtained a
certificate under section 33(7) of the Ain, 2003 in Execution Case No.1257 of
2003 on 14.10.2004. As such, the contention of the auction purchasers (i.e.
the petitioners in writ Petition No.5961 of 2004) is not correct. The decree
holder bank denied that the title has vested upon the auction purchaser
lawfully. It is specifically contended that the scheme of the Ain 2003 is that

the Adalat has jurisdiction to conduct auction sale of the mortgaged property
only for twice, once under section 33(1)(2) and (3) and the other under
section 33(4). If the property is not sold under the aforesaid provisions on
either of the two occasions then under section 33(5) the Adalat is under
legal obligation to vest the property to the decree holder for possession and
enjoyment until the decree holder's claim is fully satisfied by selling the
property in accordance with law. Furthermore, under section 33(7) of the Ain
the Adalat is empowered to transfer the mortgaged property to the decree
holder bank on its application. Accordingly, the bank filed an application on
28.10.2003 under section 33(7) of the Ain in Execution Case No.126 of 2000
for issuance of certificate upon vesting the title of the said property in favour
of the decree holder-bank. The same having been rejected the decree holder
bank has obtained Rule in Writ Petition No.3016 of 2004.
12. In the affidavit-in-opposition filed in Writ Petition No.5961 of 2004. It
has specifically been stated that the judgment debtor of the execution Case
No.126 of 2000 and Execution Case No.1257 of 2003 are more or less same
and those judgment debtors have more liabilities to the tune of Tk. 107.07
lacs against Stands Enterprise Limited and Tk. 42.12 lacs against S.S.
Enterprise but there is no security against such liabilities except the
scheduled property described in this execution case for which two other suits
have also been filed against them. The said property allegedly having been
sold in auction in Execution Case No.126 of 2000 has made the decree in the
other two suits in executable. The respondent bank in Writ Petition No.5961
of 2004 submits that unless the certificate of title is issued in favour of the
loanee bank the bank will be unable to realise the decretal amount. Thus,
the order of issuance of the certificate on 14.10.2003, which has been
challenged in Writ Petition No.5961 of 2004, has been passed in accordance
with law. On these grounds the respondent bank submits that the Rule in
Writ Petition No.5961 of 2004 is liable to be discharged.
13. Mr. Ajmalul Hossain, the learned Advocate, appearing for the bank in
both the writ petitions submits that the legislature by enacting the Artha Rin
Adalat Ain, 2003 has intended to realise the loan from the loanee at the
earliest possible opportunity. Accordingly, upon amending and consolidating
the original Ain of 1990 several provisions have been incorporated in the
new Ain of 2003 to dispose of the suit and the execution proceedings at an
earlier possible opportunity. Accordingly, upon amending and consolidating
the original Ain of 1990 several provisions have been incorporated in the
new Ain of 2003 to dispose of the suit and the execution proceeding at an
earliest opportunity. In that view of the matter the legislature has
incorporated Chapter VI in the new Ain 2003, containing sections 26 to 39
for execution of a decree, wherein section 33 deals with auction sale.
According to him in section 33 there are as many as 9 subsections which

have spelt out the process as to how the decree would be executed for
realisation of decretal dues. The process is either by selling the mortgaged
property in auction on by issuing certificate in favour of the decree holder
bank and thereby make over the possession and/or title of the property to
the decree holder who in his turn may sell the property by auction to realise
the decretal dues or can enjoy the benefit of the same. The said section has
also provided issuance of certificate in favour of the decree holder as to
transfer of title of the mortgaged property in case the property could not be
sold in action or the decretal dues could not be realised. Mr. Hossain submits
that section 33(1), (2), (3) and (4) categorically provided the procedure as
to how the mortgaged property is to be sold in auction. According to him, in
view of section 33 of the Ain 2003 there is no scope for inviting bid for
selling the mortgaged property in auction more than two times, one under
section 33(1)(2) and (3) and the other under section 33(4). In case the
auction is held more than two times, as aforesaid, then the same will be
illegal and without jurisdiction. He submits that the scheme of section 33 is
to conduct the auction sale under sub section 1, 2, 3 and if the same fails
then automatically section 33(4) will come into operation. If the same also
fails then there is no scope for holding further auction as provided under the
said sections. Consequently, the learned advocate submits, the Adalat is
bound to invoke section 33(5) or in appropriate cases section 33(7) and
thereby vest the possession of the property to the decree holder or to
transfer the title to the same respectively. Beyond that the auction of the
Adalat will be without jurisdiction.
14. In the present case, he submits that auction has been called for 12 times
before May, 2003 when the new law came into force. Thereafter, as many as
4 auction bids took place. Finally, on 28.9.2003 the property was sold in
auction. In not exercising the power provided for under section 33(5) and/or
section 33(7) of the Ain, after two auctions being offered, the executing
Court has committed illegality. He submits that the impugned action of the
Adalat in allowing more than one sate each under section 33(2) & (3) and
under section 33(4) is totally beyond the intention of the Parliament and as
such the same is a nullity and accordingly liable to be set aside. He submits
that since the auction held on 28.9.2003 is without jurisdiction acceptance
and confirmation of the same is nullity rather the subsequent order
challenged in Writ Petition No.5961 of 2004 is lawful and valid. In this
respect he referred several decisions including those in the case of Dr. M.O.
Ghani Vs. Dr. A.N.M. Mahmood reported in 18 DLR (SC) 463 para 20 &
21; in the case of Nagina Silk Mill, Lyallpur Vs. Income tax Officer
reported in 15 DLR (SC) 181; in the case of Anisminic Ltd. Vs. Foreign
Compensation Tribunal; reported in [1969] 2 Appeal cases 147 (195)
and in the case of Managing Director, Rupali Bank limited and others
Vs. Tafazal Hossain and others, reported in 44 DLR (AD) 260.

15. Mr. Abdul Wadud Bhuiyan, the learned Advocate appearing on behalf of
the auction purchasers, (respondent Nos.5 and 6 in Writ Petition No.3016 of
2004 and petitioners in Writ Petition No.5961 of 2004) submits that the
whole submission of Mr. Hossain is suffering from misconception of law.
Because, the decree holder bank has no right to pray for issuance of
certificate under section 33(7) when the sale has already been concluded,
confirmed and made absolute under Order XXI Rule 92 of the Code of Civil
Procedure. Once the sale is absolute/confirmed no Court can interfere with
the same unless, the sale is set aside. During the entire process as aforesaid
the bank neither raised any objection to the bid on the date of auction i.e.
28.9.2003 not immediately, there-after it filed any application for setting
aside the sale. Rather, on 26.10.2003, about a month after the bid was
accepted the bank filed an application under section 33(2) and 57 of the Ain
2003 read with section 151 of the Code for a direction to cancel the auction
sale and fix another date for fresh auction. Mr. Bhuiyan submits the sale can
only be set aside under Order XXI Rule 90 on the ground of material
irregularity and fraud in publishing or conducting the sale not under section
33(2) or 57 of the Ain read with 151 of the Code. The application was
misconceived. However, the said application was fixed for hearing on
28.10.2003, when for the first time the bank came up with an application,
under section 33(7) of the Ain 2003, praying for vesting title of the schedule
property in favour of the bank upon setting aside the auction sale which is
ex-facie contrary to the said provision of taw. He submits since the bank
could raise objection at the time of acceptance of the bid and could, at the
1st instance, pray for setting aside the sale under Order XXI Rule 90. Having
not done so it cannot straight way invoke section 33(7). Section 33(7) can
be invoked before section 33(4) or (5) of the Ain as it appears from a plain
reading of the said provision Again, section 33(4) cannot be invoked if
bidders appears and participate in the bid in response to proclamation
published in the news paper and other modes as prescribed in section 33(1)
or auction sale fails under section 33(2) or (3). Section 33(7) is very clear in
this respect. So by not raising any objection to the acceptance of the bid the
bank has waived it right under section 33(7). The said provision clearly
contemplates that before invoking section 33(4) or (5) section 33(7) cannot
be applied. In the present case sale was complete, under section 33(2), offer
was accepted and no object ion was raised against the same so the right
under section 22(7) was not exercised before the sale was accepted. Thus,
invoking section 33(7) after nearly a month is not tenable in law. Mr.
Bhuiyan next submits unless the bid is accepted there is no "auction" sale
and if there is no "auction sale" it cannot be said that the "auction sale
process" under section 33(1)(2) or (3) has taken place from the record it
appears that for the first time on 28.9.2003 the bidders participated in the
auction and the highest bid was accepted. Thus it can easily be said that till
28.9.2003 no "auction sale" took place and as such there was no scope for

invoking section 33(4) of the Ain at this stage Similarly, section 33(5) or (7)
also could not he invoked. Mr. Bhuiyan further submits that section 33(2),
proviso, contemplates holding of more than one "auction sale". According to
him if the bid is found to be too low then the Court has the discretion to
cancel the same which means that the fresh bid can be invited and thus
auction sale can be held more than once. Referring to section 13 and 14 of
the General Clauses Act Mr. Bhuiyan submits that the said Act allows the
executing Court to hold more than one auction and in holding the present
auction. But actually auction held on 28.9.2003 is the 1st auction. Because
after the Ain 2003 came into force on 1.5.2003 till order No.61 dated
31.8.2003 there was no compliance of section 33(1) and pursuant to the
said notice, as it appears from order No.63 dated 28.9.2003, bidders
participated and auction sale took place Section 33(1) in (4) contemplates
"auction sate" not ''auction" Again unless the bid is accepted there is no
auction sale and on 28.9.03 the auction held bids were accepted without any
objection from any quarter including the decree holder bank. Thus, auction
sale was complete. Once auction sale is complete section 33(7) cannot be
invoked under the law. So, on a categorical reading of the provisions of
section 33 it is clear that the submissions of Mr. Hossain as to holding of
auction for more than once under section 33(1) or (4), is not correct.
According to him, when the sale became absolute the property vested with
the purchaser from the date when the property was sold in auction as
provided in section 65 of the Code of Civil Procedure. Hence, the bank has
no right to file such application under section 33(7) after one month of the
sale without making prayer for selling aside the sale under the appropriate
provision of law. He further submits that once the sale is made absolute no
Court can interfere unless the same is set aside.
16. In support of his contentions Mr. Bhuiyan relied on the several decisions
namely AIR 1991 (SC) 1055 (para-5); AIR 1959 (SC) 149 (para 53
and 73); AIR 1965 (SC) 1405 (para 11); AIR 1981 (ISC) 315 (para
150, 151); 48 DLR 1 (Para 30 to 35).
17. Upon hearing the learned advocates for the parties and on perusal of the
writ petitions, affidavit in oppositions, supplementary affidavit along with all
the annexures appended therein, it appears that question has been raised as
to firstly, whether the Artha Rin Adalat Ain 2003 provides for holding of
auction sale for more than once under section 33(1), (2) and (3) and under
section 33(4), secondly, when section 33(7) can be invoked and thirdly, to
construe section 33 whether "auction" is to be held or "auction sale" requires
to be completed? To answer the aforesaid questions let us examine the
provision of section 33 as a whole:

 ()
()
, ,
, , ;

() % ,

, , ()
,
, -
,
() - () ,
, ,

,
()


() - (), (), ()
, () ,
, , - ()

, -
() ()
() - (), (), () ()
,
, - (), (), () ()
,

()
,

() - () () ,
, , - (), (), ()
, - () ()



-

() , - ()

() - () - ()
, ,

18. On perusal of the entire provision of section 33 as stated above it
appears that the heading of the section is meaning "Auction
sale". Thus it is clear that "auction" is not the subject matter in construing
this provision but "auction sale" is to be construed. Moreover, section 33(1)
provides the procedure of publishing notice for "sale". Similarly section 33(4)
provides meaning not possible to sell in auction an
33(5) provides for meaning not possible to sell. So it
appears that all these sub-sections deal with "sale of the property." Thus the
contentions of Mr. Hossain that after the publication of the notice under
section 33(10) whether bidders appears or not auction is complete and if
sale is not complete provision of section 33(4) will be invoked is not tenable
in law. Hence, the contention of Mr. Bhuiyan that auction sale is to be
completed appears to be more appropriate.
19. Reading the entire provision of section 33 it appears that procedure of
auction sale has been categorically spelt out in the said section particularly
in sub-sections (1), (2), (3) and (4) Pursuant to the sale proclamation
published in one National Daily as contemplated in sub-section (1) sub
section (2) comes into operation. Similarly, sub-section (3) comes into
operation when the highest bidder fails to pay off the rest of the bid money
within 10 days then the second highest bidder would be invited to purchase
the same. Reading these two provisions we find that there must be at least
two bidders. Again reading the proviso of sub- section (2) we find that the
Adalat has been given the discretion to cancel the sale bid in case the price
is shockingly low meaning that the Court can exercise its discretion to cancel
the bid, no matter whether the bid is contested by two bidders or more but
only on consideration that the bid is too low. Thereafter sub-section (4) will
come into operation in case the auction sale cannot be held under section 33
(1), (2) or (3) i.e. including cancellation of the bid on the ground that the
price is too law. Reading all the aforesaid provisions it appears that the
statute has given scope to the Adalat to hold auction more than once under
section 33(1) (2) and (3) or under 33(4). The said view is fortified if we
examine section 34(9) of the Ain which reads as follows:

() ,

meaning that at least one auction sale
process is completed, (under linings are made for giving emphasis).
20. So it appears that the aforesaid subsection categorically says that
minimum one sale process is to be taken place or completed. From the
language used therein it is also clear that the Adalat has the power to hold
auction sale more than once. Reading all the aforesaid provisions together
we find that there is no scope to hold that more than one auction sale under
the aforesaid provisions is barred.
21. On the other points, as agitated by the parties, we find that the sale has
been held and accepted on 28.9.2003 and has been made absolute under
Order XXI Rule 92 of the Code, on 28.10.2003 and prior to that, before
26.10.2003 no step was ever taken by the bank, as to the sale or as to the
bid offered by the purchaser which has been accepted by the Adalat on the
date of sale. Again on 28.10.2003, when the application dated 26.10.2003
was fixed for hearing the respondent bank came up with a fresh application
under 33(7) without praying for setting aside the sale. The Adalat on the
event of acceptance of the bid and having not raised any objection thereto
by the bank on the dated of acceptance rejected the prayer under 33(7) and
subsequent thereto, the boinama (the sale certificate) was issued and the
same has been sent for registration. In consequence, with the confirmation
of sale the same has become absolute and the mortgaged property sold in
such auction in execution of the decree has already been vested on the
purchaser from the date when the property was sold in auction i.e. on
28.9.2003 as contemplated in section 65 of the Code of Civil Procedure. So
when the sale became absolute without any objection of the respondent
Bank and the properly being vested with the purchaser no step under section
33(7) can be taken by the bank. The provision of invoking section 33(7) has
been categorically spelt out in the said provision itself. It says.........., - (), (), () , -
() ()

................
So it appears that the statute provides that the auction sale process is to be
completed first under section 33(1),(2),(3) and in case of failure to sell the
property under the said provisions right under section 33(7) can be exercised by the decree holder not prior to that. Again if the auction sale is
complete then section 33(7) cannot be invoked. The right given under
section 33(7) is a right given infavour of the decree holder so that when the

property cannot be sold in auction, and the decretal dues cannot be realized,
the interest of the decree holder is not frustrated. Rather the decree holder
can enjoy the benefit of the decree by enjoying the ownership of the
property in any manner as its lawful owner.
22. Therefore, the prayer for issuance of the certificate dated 28.10.2003
has been rightly rejected by the Adalat.
23. So far the question raised in Writ Petition No.5961 of 2004, it appears
that the properly in question is the same property which has already been
sold in auction in Execution Case No.126 of 2000 to the petitioners of the
instant writ petition and the sale having already been made absolute the
property sold in auction having already been vested in the petitioners the
same cannot be put into auction sale in a subsequent execution case for
execution of another decree, no matter whether the same is mortgaged to
the bank in the subsequent suit. It was the duty of the bank to be more
careful at the time of bringing the property in the first execution case, so
that the decretal dues, if any, to the judgment debtor in any other suit, can
also be realized by selling the same property which, according to the bank,
was mortgaged by the judgment debtors in connection with three different
transactions with the same bank. Thus the mortgaged property which is the
subject matter of execution Case No.126 of 2000 arising out of Title Suit
No.32 of 1996 auction sale of which has been challenged in Writ Petition
No.3016 of 2004 being the earlier transaction and the property being mortgaged if any, therein the subsequent mortgage of the same in connection
with other transaction may be a second or third charge but the property
initially mortgaged in connection with first one should be satisfied first then
comes the question of second and third charge. In the instant cases it has
not been spelt out by the bank whether the property is first, second or third
charge. Even then with the execution of the decree in the earlier suit, where
the property has been mortgaged and whose value is much higher than the
accepted bid as alleged by the bank, we are afraid that the bank can get
advantage since the property has already been sold and vested on the purchaser without any objection raised at the time of acceptance of bid. So, in
this respect the impugned order dated 14.10.2004 challenged in Writ
Petition 3961 of 2004 appears to have been passed completely without jurisdiction, because the property in execution Case No.1257 of 2003 is the same
property which has already been sold in auction much earlier to the auction
purchaser i.e. the petitioners of Writ Petition No.5961 of 2004 in Execution
Case No.126 of 2000 arising out of Title Suit No.32 of 1996 between the
same parties. As such the Adalat had no jurisdiction to issue certificate
under section 33(7) in a property as the rule of the said property has already
been vested upon the auction purchasers as provided in section 65 of the

Code of Civil Procedure in accordance with law. Thus, the impugned order is
illegal and without lawful authority.
24. For the reasons and discussions made hereinabove, we are of the view
that the Rule in Writ Petition No.3016 of 2004 has no merit and as such the
same is liable to be discharged. The Rule in Writ Petition No.5961 of 2004
bears merit and accordingly the same is liable to be made absolute.
25. In the result, the Rule in Writ Petition No.3016 of 2004 is discharged and
the Rule in Writ Petition No.5961 of 2004 is made absolute.
There will be no order as to costs.
Ed.
This Case is also Reported in: 29 BLD (HCD) (2009) 284.