Orders a Borrower Can Challenge by Writ under the Artha Rin Adalat Ain, 2003
Summary
A borrower (judgment-debtor) can take an Artha Rin Adalat order to writ under Article 102 when the order is made without jurisdiction or in breach of a mandatory step the Ain prescribes, so that it is void rather than merely wrong. In the cases supplied, writs succeeded against five kinds of execution order: a s.33(5) or s.33(7) certificate issued without the required steps, an order summarily rejecting an O.XXI r.90 objection without inquiry, an order reopening a settled execution and confirming a defective sale, and an order refusing to undo a sale procured by fraud.
Writ fails where the borrower skipped the statutory remedy (O.XXI r.90, or appeal under s.41), where the dispute turns on facts such as fraud or value that need evidence, or where the borrower's own conduct is poor. The decree itself is challenged by appeal or a s.19 application, not writ, and a bank's own pre-suit sale under s.12 cannot be challenged at all.
This note is drawn from the sixteen Artha Rin judgments supplied earlier in this conversation; cases cited inside them are marked as such.
The test: when writ lies
The availability of another remedy is not a legal bar to writ; it is a rule by which the High Court Division regulates its discretion (Fariduddin Mahmud v Md Saidur Rahman, 63 DLR (AD) 93, following Bangladesh Bank v Zafar Ahmed Chowdhury, 56 DLR (AD) 175). The Appellate Division listed when certiorari will issue against an Adalat's order despite another remedy:
the proceedings are absolutely void, or the Adalat acted without or in excess of jurisdiction;
the Adalat was not properly constituted;
there is an error apparent on the face of the record;
the conclusion rests on no evidence at all;
the order is mala fide, or malice in law;
the order is contrary to fundamental principles, including natural justice;
the statutory remedy is ineffective or ill-suited to the situation.
"In the absence of the above grounds, the Court will not interfere however erroneous or improper it may be" (Fariduddin Mahmud, para 19). The same tests appear in National Engineers v Jubak Housing, 67 DLR (AD) 176: the writ bench must ask whether the Adalat acted without jurisdiction, on no evidence, without considering material facts, contrary to or on a misreading of the law, mala fide, or in breach of natural justice.
Effect of the 2003 Ain. Under the 1990 Ain, Adalat orders (as opposed to decrees) were not appealable, so writ was the ordinary route (Sardar Jan-A-Alam, 4 BLC (AD) 178; Harun-or-Rashid v Pubali Bank, 60 DLR (AD) 18 and Sultana Jute Mills v Agrani Bank, 46 DLR (AD) 174, as cited in Sonali Bank v Asa Tex). Section 41 of the 2003 Ain now allows an appeal against post-decree orders, and Sonali Bank v Asa Tex, 20 BLC 185 (HCD 2014) and Trade Multiplex, 62 DLR 533 hold that appeal, not writ, is the forum for them. Even so, the High Court Division has continued to entertain borrowers' writs against execution orders that are void for want of jurisdiction (table below). The practical rule is: appeal for errors, writ for nullities.
Orders a borrower has challenged by writ
Every successful borrower's writ in these cases attacked an execution order that skipped a step the Ain makes mandatory, or refused to examine a serious objection at all.
| Type of order | Why writ lay | Case | Result |
|---|---|---|---|
| Certificate of possession and transfer under s.33(5) on a bare application, with no execution case filed | No execution case under Chapter VI and s.28, so no jurisdiction; "important question of law" and no statutory bar to writ | Md Joinaul Abedin Mintu v Joint District Judge, 2010(18) BLT (HCD) 277 | Order declared without lawful authority |
| Certificate of title under s.33(7) with no prior auction attempt; and the later order rejecting the borrower's s.57 application to undo it | s.33(7) requires at least one s.33(1) auction with newspaper notice | Saboj Traders v Joint District Judge, 24 BLC 769 (HCD 2017) | Both orders declared without lawful authority |
| Certificate of title under s.33(7), and disposal of the execution under s.33(9), after skipping s.33(4)–(6) | Once s.33(4) is invoked the sequence must be followed; certificate "without jurisdiction" | Zodiac Sweaters v Judge, Artha Rin Adalat, LEX/BDHC/0515/2014 (HCD) | Both orders declared illegal; execution to proceed under s.33(4) |
| Order rejecting the borrower's O.XXI r.90 miscellaneous case outright on "maintainability" | Fraud and shockingly low price alleged but no inquiry made; summary rejection "smacks collusion" | Agrani Bank v Artha Rin Adalat, 27 BLC 10 (HCD 2019) (borrower's W.P. 89/2014, heard with the bank's) | Entire auction set aside |
| Order setting aside an earlier full-satisfaction order and confirming an old auction sale | Sale vitiated by non-publication; settlement under s.45 before sale certificate was valid | Habibur Rahman Miah v Judge, Artha Rin Adalat, Pabna, 2020(28) BLT (HCD) 7 | Order set aside |
| Order rejecting the borrower's s.57 application to set aside a sale on the ground of fraud and low price | Fraud apparent on the order-sheet (collusive bids; bid accepted despite bank's s.33(7) application); fraud defeats res judicata | Jahangir Kabir Chowdhury v Bangladesh, 22 BLC (AD) 139 (2016) | HCD discharged the Rule; Appellate Division let the borrower keep the property on paying the purchaser Tk 32 crore |
Borrowers' writs that failed
| Type of order | Why writ failed | Case |
|---|---|---|
| Tender notice, and order accepting the highest bid | No O.XXI r.90 application filed; serial writs to stall the sale; no offer to pay in the Adalat; HCD granted relief summarily without a Rule | Fariduddin Mahmud, 63 DLR (AD) 93 |
| Order accepting the bid after several auctions (challenged by a lessee) | Petitioner neither challenged the decree nor filed under O.XXI r.90 | Mohd. Junayed Quader, 5 LM (AD) 418 |
| Bank's own sale under s.12 | s.12(8) bars challenge; petitioner also hid an earlier writ on the same issue | Banesa Bibi, 63 DLR (AD) 160 |
| Auction order where fraud needed evidence | Fraud and material irregularity are questions of fact for the Adalat under O.XXI r.90 | Antibiotic Stores, 55 DLR (AD) 13 (as cited in Fariduddin Mahmud) |
Other orders that bank or third-party writs have reached, and which a borrower could attack on the same reasoning: an order refusing to adjourn a sale and selling on a hartal day (Sardar Jan-A-Alam), and an order vesting property already sold in an earlier execution (ABBL, 29 BLD 284).
Orders that belong in another forum
| Order or grievance | Proper route | Authority |
|---|---|---|
| The money decree itself | Appeal under s.41, with 50% of the decretal amount deposited | Dr Md Asadullah, 62 DLR 474; s.41(2) as read in Sonali Bank v Asa Tex |
| Ex parte decree | Application under s.19(2), with 10% of the decretal amount deposited | Sonali Bank v Asa Tex, 20 BLC 185 |
| Sale tainted by fraud or material irregularity | Miscellaneous case under O.XXI r.90 in the Adalat, then appeal or writ against its rejection | Fariduddin Mahmud; Mohd. Junayed Quader |
| Post-decree order on an objection to sale | Appeal under s.41; no 50% deposit if only the sale is attacked and the decree is kept | Sonali Bank v Asa Tex; Dr Md Asadullah |
| Pre-decree interlocutory order | No appeal or revision (s.44(2)); raise it in the appeal against the decree | Sonali Bank v Asa Tex |
| Separate civil suit against the decree or execution | Barred by s.20 | Agrani Bank v Rina Humayun, 14 ADC 872 |
| Bank's own pre-suit sale under s.12 | Suit against the bank for damages (s.12(8)) | Banesa Bibi |
| Order rejecting an O.XXI r.90 application | Not by civil revision (decided under the 1990 Ain) | Bulbul Electric Market v Rupali Bank, 11 MLR (AD) 409, as cited in Sonali Bank v Asa Tex |
One pre-decree point remains open on these materials. Writ was treated as the forum for interlocutory Adalat orders under the 1990 Ain (Harun-or-Rashid; Hosne Ara Begum v Islami Bank, 5 MLR (AD) 290, as cited in Sonali Bank v Asa Tex). Whether that survives s.44 of the 2003 Ain is not decided in the judgments supplied; a pre-decree order that is wholly without jurisdiction is the strongest candidate for writ.
Conditions and pitfalls
Use the Adalat first. File the O.XXI r.90 case or a s.57 application before coming to writ, and annex the order rejecting it. A writ filed straight against an auction order failed in Junayed Quader and Fariduddin Mahmud.
Plead a nullity, not an error. Frame the ground as want of jurisdiction or breach of a mandatory step (s.28, s.33 sequence, O.XXI r.66, natural justice), supported by the order-sheet. The successful writs in Mintu, Saboj Traders and Zodiac Sweaters turned on the order-sheet alone.
Come with clean hands. Disclose every earlier writ and application on the same matter; concealment counted against the petitioner in Banesa Bibi. Serial petitions to delay the sale defeated relief in Fariduddin Mahmud.
Show readiness to pay. Courts favoured borrowers who deposited or offered the decretal amount (Habibur Rahman Miah; Jahangir Kabir Chowdhury; Asadullah). An offer first made orally in the High Court Division, never put to the Adalat, did not help in Fariduddin Mahmud. Where no payment is shown, the court may refuse further time (Saboj Traders).
Seek a Rule against everyone affected. The bank and the auction purchaser must be respondents and served; relief granted without a Rule, or without hearing them, will be set aside (Fariduddin Mahmud; National Engineers).
Do not ask for summary relief. The High Court Division cannot dispose of the petition, stay the sale or order instalments on oral submissions without issuing a Rule (Fariduddin Mahmud, citing 56 DLR (AD) 175 and other cases).
Expect security terms. The High Court Division may make relief conditional on a deposit; in Rina Humayun a third-party writ petitioner was directed to deposit 25% of the decretal dues as security.
Move promptly. Delay and acquiescence weigh against discretionary relief (Fariduddin Mahmud, citing Lindsay Petroleum v Hurd).