Writ Petitions at the Execution Stage of an Artha Rin Case
For most borrowers, the real danger in an Artha Rin case comes after the decree. In the execution case, the Artha Rin Adalat can sell a family home or a factory at auction, or hand its title to the bank by certificate. Many borrowers assume that once a decree is passed nothing more can be done. That is not so.
The Artha Rin Adalat Ain, 2003 is a strict law, but it is also a law of strict procedure. When the Adalat or the bank skips a step the law makes mandatory, the High Court Division can intervene under Article 102 of the Constitution. The writ usually sought is certiorari, declaring the Adalat's order "passed without lawful authority and of no legal effect", often joined with a direction (mandamus) telling the Adalat what to do next, and an interim stay to halt the sale while the case is heard.
This article explains when such a writ lies, what orders the Supreme Court has struck down, and when a writ will not help.
When will the High Court Division step in?
A writ is not a second appeal. The Ain gives its own remedies at the execution stage: an objection under Order XXI rule 90 of the Code of Civil Procedure against a sale, and an appeal under section 41 against post-decree orders. The High Court Division expects these to be used first. But the existence of another remedy is a rule of discretion, not a bar on the Court's power.
The Appellate Division has explained when certiorari will issue despite another remedy: where the proceedings are absolutely void, where the Adalat acted without or beyond its jurisdiction, where there is an error apparent on the face of the record, where the decision rests on no evidence, where it is mala fide, or where natural justice has been denied (Fariduddin Mahmud v Md Saidur Rahman, 63 DLR (AD) 93). Outside these, the Court will not interfere, "however erroneous or improper" the order may be.
In short: a writ is the remedy for an execution order that is void, not one that is merely wrong.
The kinds of writ used at the execution stage
Certiorari: quashing the Adalat's order
This is the main writ. The petition asks the Court to call for the record and declare a particular execution order without lawful authority. Examples include an order accepting a bid, confirming a sale, rejecting an objection to a sale, or issuing a certificate of possession or title to the bank. If the order falls, everything built on it usually falls with it. In Sardar Jan-A-Alam v Arab Bangladesh Bank, 4 BLC (AD) 178, once the sale was declared unlawful, "all orders and actions" taken after it, including possession given to the purchaser, became void.
Mandamus: directing the Adalat to act lawfully
Alongside quashing an order, the Court can direct the Adalat to do what the law requires. In Agrani Bank v Artha Rin Adalat, 27 BLC 10 (2019), the Court set aside the auction and directed that the execution be transferred under section 27 to the district where the property lay, so it could be sold for a fair price. In Zodiac Sweaters v Judge, Artha Rin Adalat (2014), the Adalat was directed to resume the auction process under section 33(4) instead of handing title to the bank.
Interim stay: holding the sale while the case is heard
When a Rule is issued, the Court can stay the auction or order the status quo to be kept. But a stay is only ancillary to a Rule. The High Court Division cannot stay a sale, or allow instalments, on oral submissions without first issuing a Rule and hearing the bank and the auction purchaser (Fariduddin Mahmud).
Execution orders the courts have struck down
The successful writs share one feature: the Adalat's own order-sheet showed that a mandatory step had been skipped.
| Order challenged | What went wrong | Case |
|---|---|---|
| Certificate of possession under s.33(5) | The bank never filed an execution case; it applied in the suit itself | Md Joinaul Abedin Mintu, 2010(18) BLT (HCD) 277 |
| Certificate of title to the bank under s.33(7) | No auction had ever been advertised in a newspaper | Saboj Traders, 24 BLC 769 (HCD 2017) |
| Certificate of title under s.33(7) | A re-auction under s.33(4) had begun, but the Adalat jumped to s.33(7) | Zodiac Sweaters (HCD 2014) |
| Rejection of objections to the sale | Collusive family bids and a price half the bank's own valuation, rejected without any inquiry | Agrani Bank, 27 BLC 10 (HCD 2019) |
| Order confirming an old sale and undoing a settlement | No newspaper notice for the actual sale date; the debtor had settled with the bank before the sale certificate issued | Habibur Rahman Miah, 2020(28) BLT (HCD) 7 |
| Rejection of the debtor's application to undo the sale | Fraud apparent on the record; the bid was accepted while the bank's own s.33(7) application was pending | Jahangir Kabir Chowdhury, 22 BLC (AD) 139 (2016) |
| Sale held on a hartal day | Material irregularity; sale and possession set aside | Sardar Jan-A-Alam, 4 BLC (AD) 178 |
The Appellate Division has gone further where fraud is shown. In Jahangir Kabir Chowdhury the borrower had lost earlier rounds of litigation, yet the Court held that fraud defeats res judicata. It allowed him to keep his property by compensating the auction purchaser.
Other defects that make a sale void, and so suit a writ, include: an execution case filed out of time under section 28 (Dr Md Asadullah, 62 DLR 474), execution against a judgment-debtor who had died without his heirs being substituted, and a sale with no proclamation under Order XXI rule 66 at all (Agrani Bank v Rina Humayun, 14 ADC 872 (AD 2017)).
When a writ will not help
Writ relief is discretionary, and the Supreme Court has refused it in these situations:
The statutory remedy was skipped. A petitioner who neither filed an objection under Order XXI rule 90 nor challenged the decree could not come straight to writ against an auction (Mohd. Junayed Quader v Artha Rin Adalat No. 4, 5 LM (AD) 418).
The case turns on disputed facts. Whether there was fraud or a material irregularity in conducting a sale is a question of evidence, best decided by the Adalat under rule 90 (Antibiotic Stores, 55 DLR (AD) 13, approved in Fariduddin Mahmud).
The petitioner's conduct is poor. A borrower who filed writ after writ to stall a sale, and never offered to pay in the Adalat, was denied relief (Fariduddin Mahmud). Hiding an earlier writ on the same issue counted against the petitioner in Banesa Bibi, 63 DLR (AD) 160.
The bank sold the property itself before suit. A sale by the bank under section 12 cannot be challenged by writ; section 12(8) leaves the owner only a claim for damages (Banesa Bibi).
The petition is a separate civil suit in disguise. A civil suit attacking an Artha Rin execution sale is barred by section 20 (Agrani Bank v Rina Humayun).
The Court also insists that everyone affected is heard. The bank and any auction purchaser must be made respondents and a Rule issued against them; relief granted without that will be set aside (Fariduddin Mahmud; National Engineers v Jubak Housing, 67 DLR (AD) 176).
Practical points for borrowers
Get the order-sheet early. Most successful writs were won on the Adalat's own record: the dates, the notices published, and the steps taken or skipped.
Object in the Adalat first. File the rule 90 objection or an application under section 57 promptly, and ask for an inquiry. The order rejecting it is often what the writ attacks.
Move quickly. Delay and acquiescence weigh heavily against discretionary relief.
Be ready to pay. Courts have been most willing to help borrowers who deposited or offered the dues: in several cases the borrower kept the property on paying the decretal amount, with compensation to the purchaser.
Disclose everything. Every earlier application and writ on the same matter must be stated in the petition.
How The Justice Corner can help
The Justice Corner advises borrowers, banks and auction purchasers in Artha Rin execution proceedings and writ petitions before the High Court Division. We review the execution record to identify defects that make an order void, advise whether a writ, an objection in the Adalat or an appeal is the right course, and act at every stage.
If your property has been put up for auction, or a certificate has been issued in the bank's favour, contact The Justice Corner, Dhaka, as early as possible.
This article is general information on the law of Bangladesh as reflected in the reported decisions cited. It is not legal advice on any particular case.