Procedural Irregularities in Artha Rin Proceedings
Procedural defects in Artha Rin proceedings fall into two classes, and the class decides both the remedy and the burden. Breach of a mandatory step makes the proceeding void: no execution case, execution out of time, execution against a dead judgment-debtor, no sale proclamation at all, or a s.33(7) certificate issued out of sequence. These can be raised at any stage and support a writ. Irregularity in publishing or conducting a sale (short notice, sale on a hartal day, collusive bids, a shockingly low price) makes the sale voidable; it must be raised promptly under O.XXI r.90 CPC and needs proof of substantial injury.
The courts read the Ain strictly against the bank and the Adalat because it is a "harsh law" that takes a borrower's property (Dr Md Asadullah, 62 DLR 474). Each table below gives the defect, its effect, the authority and the usual way to raise it.
Drawn from the sixteen judgments supplied earlier in this conversation; cases cited only inside them are marked.
1. The suit
| Irregularity | Effect | Authority | Raise by |
|---|---|---|---|
| Summons not served; substituted service under O.V r.20 not followed after 15 days (s.7, as amended 2007) | Ex parte decree liable to be set aside; the court must be satisfied the defendant knew of the case | Dr Md Asadullah v Sonali Bank, 62 DLR 474 (HCD 2010) | s.19 application (10% deposit) or s.41 appeal (50%) |
| Process server not examined before an ex parte decree (O.V r.19) | Same; required "since the law is harsh" | Dr Md Asadullah | Same |
| Ex parte decree passed in haste (within four months of filing) without considering service | Treated as a sign that procedure was not followed | Dr Md Asadullah | Same |
| Claim the Adalat cannot try joined in the decree (BHBFC loan under P.O. 7 of 1973, Art. 27) | Decree "not passed legally"; without jurisdiction | Dr Md Asadullah, following 47 DLR 158 and 49 DLR (AD) 80 (cited) | Appeal; writ for want of jurisdiction |
| Loans with different repayment terms merged in one decree before one fell due | Decree untenable | Dr Md Asadullah | Appeal |
| Pre-decree interlocutory orders (adjournments, refusals) | No separate appeal or revision (s.44(2)) | Sonali Bank v Asa Tex, 20 BLC 185 (HCD 2014) | Ground of appeal against the decree |
2. Starting execution
| Irregularity | Effect | Authority | Raise by |
|---|---|---|---|
| Execution case filed after the s.28 period (180 days, later one year from 2008), counted from the decree; a money decree is final at once under s.5(3) | Execution and every later step, including the sale, without jurisdiction | Dr Md Asadullah; Agrani Bank v Rina Humayun, 14 ADC 872 (AD 2017) | Objection in execution; writ; appeal |
| No execution case filed; bank applies for s.33 relief in the suit itself | "Patently unlawful"; Chapter VI must be followed | Md Joinaul Abedin Mintu, 2010(18) BLT (HCD) 277 | Writ |
| Judgment-debtor dead; heirs not substituted or served | Proceeding against a dead man is a nullity; sale void | Agrani Bank v Rina Humayun | Objection; appeal; writ |
| No notice of execution served on a judgment-debtor (ss.30, 33) | Where there is no personal or substituted service, the auction is a nullity | Agrani Bank v Rina Humayun | Same |
| Execution in a district other than where the property lies | Execution should be transferred under s.27 to secure the best price | Agrani Bank v Artha Rin Adalat, 27 BLC 10 (HCD 2019), following Gulshana Ara Begum, 70 DLR 230 (cited) | Transfer application; writ |
| Property already sold and vested in an earlier execution brought into a new one | No jurisdiction to sell or vest it again | ABBL v Artha Rin Adalat No. 3, 29 BLD 284 (HCD 2007) | Objection; writ |
3. Proclamation and notice of sale
| Irregularity | Effect | Authority | Raise by |
|---|---|---|---|
| No proclamation under O.XXI r.66 CPC (drawn after notice to both parties, stating property, encumbrances, amount due and all matters material to value) | Sub-rule (1) is mandatory and cannot be waived; total absence makes the sale void ab initio | Agrani Bank v Rina Humayun, citing Joyarama v Vridhagiri, AIR 1921 Mad 583 | Objection; appeal; writ |
| Value of the property omitted or misstated in the proclamation | Wilful omission to get a low price amounts to fraud | Agrani Bank v Rina Humayun; Fariduddin Mahmud, 63 DLR (AD) 93 | O.XXI r.90 |
| Sale held on an adjourned date never published in a newspaper | Sale "vitiated by non-publication of proclamation of sale" | Habibur Rahman Miah, 2020(28) BLT (HCD) 7 | O.XXI r.90; writ |
| s.33 notice requirements not shown on record: 15 days' notice, Court notice board, beat of drums in the locality | Sale held not in accordance with law | Dr Md Asadullah; Rina Humayun (no notice-board or drum direction) | O.XXI r.90 |
| Notice period counted in calendar days | Only working days count (s.48); 16 days with 4 holidays was short | Abul Khayer Mollah, 2018 ALR (HCD) 372 (a s.12 sale) | O.XXI r.90; suit for s.12 sale |
| No publication in the locality of the property | Adalat itself rejected a bid partly on this ground | Jahangir Kabir Chowdhury, 22 BLC (AD) 139 | O.XXI r.90 |
| No newspaper notice before a s.33(7) certificate | Certificate unlawful; at least one s.33(1) auction must be attempted | Saboj Traders, 24 BLC 769 (HCD 2017) | s.57 application; writ |
4. Conducting the auction
| Irregularity | Effect | Authority | Raise by |
|---|---|---|---|
| Sale held on a hartal day, in the absence of both parties, after refusing the bank's adjournment request | Material irregularity; sale and all later steps void; fresh auction | Sardar Jan-A-Alam, 4 BLC (AD) 178 | O.XXI r.90 (no 20% deposit needed); writ |
| Bidders' earnest money not paid in full (s.33(2)) | Those bidders are not lawful bidders; the "highest" bid may be the only valid one | Agrani Bank v Artha Rin Adalat, 27 BLC 10 (HCD 2019) | O.XXI r.90 |
| Collusive bids: relatives bidding, pay orders with consecutive serial numbers, token second and third bids | Fraud on the Adalat; whole auction a nullity | Agrani Bank (2019); Jahangir Kabir Chowdhury | O.XXI r.90; s.57; writ |
| Bid accepted at once over the bank's objection to price, without time to substantiate | Hasty acceptance is a material irregularity; Adalat "not obliged to sell at any price" | Agrani Bank (2019), following 20 BLC 329 and 17 BLC 217 (cited) | s.33(2ga) application; O.XXI r.90; writ |
| Bank's s.33(2ga) objection rejected on its wording | "A travesty of justice"; substance governs | Sonali Bank v Asa Tex | Appeal under s.41 |
| Bid accepted while the bank's s.33(7) application is pending | Adalat must abstain from the sale and cannot accept the bid | Jahangir Kabir Chowdhury | s.57; writ |
| Shockingly low price evident on the record (Tk 1 crore for Gulshan land later resold for Tk 5 crore) | Itself a material irregularity; with other circumstances, evidence of fraud | Rina Humayun; Agrani Bank (2019); Fariduddin Mahmud | O.XXI r.90 |
| O.XXI r.90 objection rejected on "maintainability" without inquiry | Summary rejection where fraud and price are alleged "smacks collusion" | Agrani Bank (2019) | Writ; appeal |
Not irregular: holding more than two auctions, including after cancelling a low bid (ABBL, 2007). In Mohd. Junayed Quader, 5 LM (AD) 418, the High Court Division rejected the two-auction argument and the Appellate Division dismissed the appeal on maintainability.
5. Certificates, confirmation and after
| Irregularity | Effect | Authority | Raise by |
|---|---|---|---|
| s.33(5) certificate of possession without an execution case or a failed auction | Unlawful; s.33(5) presupposes a failed sale under s.33(1)–(3) | Md Joinaul Abedin Mintu | Writ |
| s.33(7) title certificate with no prior s.33(1) auction attempt | Without lawful authority | Saboj Traders | s.57; writ |
| s.33(7) title certificate after a s.33(4) re-auction was started, skipping s.33(5)–(6); execution then disposed of under s.33(9) | Sequence is mandatory once begun; certificate "without jurisdiction" | Zodiac Sweaters, LEX/BDHC/0515/2014 (HCD) | Writ |
| s.33(7) certificate sought by the bank after the sale became absolute | Not available once the sale is confirmed under O.XXI r.92; bank must first have the sale set aside | ABBL, 2007 | Purchaser's objection; writ |
| Execution disposed of on "full satisfaction" at the confirmation hearing, with no sale certificate or possession | "Unusual, suspicious and incomplete" | Habibur Rahman Miah | Writ |
| Settled execution reopened years later to confirm an old sale | Settlement under s.45 before sale certificate and possession is valid; reopening set aside | Habibur Rahman Miah | Writ |
| Surplus sale proceeds not returned to the judgment-debtor | Criticised as the bank acting like "Shylock" | Rina Humayun (Tk 55.6 lakh withheld 2006–2011) | Application in execution |
6. Irregularities by the reviewing court
The appellate or writ court's own procedure can itself be challenged in the next court up.
| Irregularity | Effect | Authority |
|---|---|---|
| Writ disposed of, sale stayed or instalments allowed on oral submissions, without issuing a Rule | "Neither legal nor fair"; set aside | Fariduddin Mahmud, citing 56 DLR (AD) 175 and other cases |
| No Rule issued to the judgment-debtors whose property is at stake | Breach of natural justice; remanded for fresh hearing | National Engineers v Jubak Housing, 67 DLR (AD) 176 |
| Rule made absolute merely because the bank did not oppose, without examining the Adalat's reasons | Failure to exercise jurisdiction under Article 102 | National Engineers |
| Auction purchaser not heard before the sale is disturbed | Valuable right taken without hearing | Fariduddin Mahmud |
| Appeal dismissed for want of the 50% deposit where only the sale was challenged | Wrong in law; deposit not required | Dr Md Asadullah (civil revision) |
7. Raising an irregularity
Void defects (sections 2 and 5, the first rows of section 3): plead want of jurisdiction from the order-sheet. They can be raised by objection in the Adalat, on appeal, or by writ, and time and earlier orders do not cure them. The successful writs in Mintu, Saboj Traders and Zodiac Sweaters turned on the order-sheet alone.
Sale irregularities (sections 3 and 4): file a miscellaneous case under O.XXI r.90 promptly, plead the specific irregularity, and show substantial injury, usually the gap between price and value. Fraud and irregularity are questions of fact for the Adalat; going straight to writ fails (Junayed Quader; Antibiotic Stores, 55 DLR (AD) 13, cited in Fariduddin Mahmud). Limitation for r.90 is to verify (Limitation Act, Art. 166).
The bank's objection to price: s.33(2ga), before or after acceptance; no evidence needed (Sonali Bank v Asa Tex).
Fraud found later: s.57 application; fraud defeats res judicata and confirmation (Jahangir Kabir Chowdhury).
Against the Adalat's order on the objection: appeal under s.41, or writ where the order is a nullity or refused any inquiry.
Do not file a separate civil suit (s.20; Rina Humayun), and do not wait: delay, waiver and serial petitions defeat relief (Fariduddin Mahmud; ABBL).