I N T H E S U P R E M E C O U R T O F BA N G LA DE S H

APPELLATE DIVISION
PRESENT:

Mr. Justice Hasan Foez Siddique

-Chief Justice
Mr. Justice Md. Nuruzzaman
Mr. Justice Obaidul Hassan
Mr. Justice Borhanuddin
Mr. Justice M. Enayetur Rahim

CIVIL APPEAL NO.508 OF 2017

(From the judgment and order dated 31.01.2016 passed by the
High Court Division in Writ Petition No.4546 of 2014).

Most. Tahmina Khatun. : ....Appellant.

-Versus-
Md. Lutfor Rahman Mollah and others. : ....Respondents.

For the Appellant. : Mr. Nurul Amin, Senior Advocate

instructed by Mr. Md. Taufique
Hossain, Advocate-on-Record.

For Respondent Nos. : Mr. Probir Neogi, Senior Advocate

1-4 and 6-7. with Mr. Ekramul Haque, Advocate and
Mr. Abdul Alim Miah, Advocate
instructed by Ms. Madhumalati
Chowdhury Barua, Advocate-on-Record.

For Respondent Nos. : Not represented.

5 and 8-13.
Date of Hearing. : The 19th & 25th October, 2022.
Date of Judgment. : The 25th October, 2022.

J U D G M E N T

Borhanuddin,J: This civil appeal by leave is directed

against the judgment and order dated 31.01.2016 passed by

the High Court Division in Writ Petition No.4546 of 2014

making the Rule absolute with direction.

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The facts, leading to disposal of the appeal, in

brief, are that the respondent nos.1-7 herein as

petitioners preferred Writ Petition No.4546 of 2014

invoking jurisdiction under Article 102 of the

Constitution challenging judgment and decree dated

08.11.1994 passed by the respondent no.2 Subordinate

Judge, Artha Rin Adalat, Rajshahi, in Miscellaneous Case

No.27 of 1994, allowing the application filed by the

respondent no.6 Bangladesh House Building Finance

Corporation (hereinafter stated as ‘the Corporation’),

Regional Office, Rajshahi, under Article 27 of the

Bangladesh House Building Finance Corporation Order, 1973

(hereinafter referred to as ‘P.O. No.7 of 1973’) for

realization the loan money by selling the case land and

pursuant to the aforesaid judgment and decree auction

sale dated 11.09.2002 should not be declared to have been

held without lawful authority and is of no legal effect

and as to why a direction should not be given upon the

respondents to receive the loan money from the

petitioners and release the case land thereby restoring

the possession of the same in their favour, contending

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interalia, that 0.0432 acre of land of S.A. Plot No.1282

under C.S. and S.A. Khatian No.576 corresponding to R.S.

Plot No.1591 of Khatian No.634 of Mouza Laxmipur under

Police Station-Rajpara, District-Rajshahi was owned and

possessed by Most. Ambia Khatun, deceased wife of the

writ-petitioner no.1 and mother of writ-petitioner nos.2-

7; With a view to constructing residential house in the

said land Most. Ambia Khatun obtained loan amounting to

Tk.5,80,000/- from writ-respondent no.6 the Corporation,

Regional Office, Rajshahi; A mortgage deed was executed

by Most. Ambia Khatun on 16.09.1986 infavour of the

Corporation, which was registered by the office of the

local Sub-Registrar; The said loan amount was payable

within 20 years in monthly installment basis at the rate

of Tk.4213.70 per month; After obtaining the loan money,

Ambia Khatun constructed a multi-storied residential

building in the said land in 1986-1987 and was residing

there alongwith the writ-petitioners as her family

members; Ambia Khatun deposited monthly installments up

to 11.01.1988 but thereafter she failed to pay the

installments and at one stage outstanding dues stood at

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Tk.10,35,531.35; Writ-respondent no.6 on 16.05.1994 filed

Miscellaneous Case No.27 of 1994 before the Artha Rin

Adalat, Rajshahi, under Article 27(1) of P.O. No.7 of

1973 for recovery of outstanding dues by selling the

mortgaged property; The miscellaneous case was decreed

ex-parte by the Artha Rin Adalat vide judgment and decree

dated 08.11.1994; The decree holder-respondent no.6 filed

Execution Case No.34 of 1995 before the Artha Rin Adalat,

Rajshahi, which was transferred to Artha Rin Adalat No.3,

Rajshahi and renumbered as Miscellaneous Execution Case

No.24 of 2004; In the meantime, the mortgaged property

was put in auction on 11.09.2002 and on the date of

auction none but the Corporation participated in the bid

and purchased the case property at Tk.16,41,323/- and

obtained registered sale certificate through court on

21.08.2003 but it did not take over possession of the

case property; After few years, the Corporation decided

to sell the property and put it in auction on 07.07.2010;

Writ-respondent no.7 Ms. Tahmina Khatun and others

participated in the tender, out of which, writ-respondent

no.7 became the highest bidder; Being aware about the

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auction, writ-petitioner nos.1, 6 and 7 tried to resist

the process by filing Title Suit No.155 of 2010 in the

Court of Assistant Judge, Sadar, Rajshahi, but the plaint

of that suit was rejected under Order VII Rule 11 of the

Code of Civil Procedure as being not maintainable; Long

after auction sale, writ-respondent no.6 the Corporation

issued a letter on 06.06.2011 infavour of writ-respondent

no.7 confirming the approval of the said sale;

Thereafter, the Corporation initiated Eviction Case

No.9/2011-2012 through the office of Deputy Commissioner,

Rajshahi, who on 12.06.2013 served a notice under section

5(2) of the Government and Local Authority Lands and

Buildings (Recovery of Possession) Ordinance, 1970 asking

the writ-petitioners to vacate the case property; Writ-

petitioner no.7 challenged the said notice by filing Writ

Petition No.6999 of 2013, which was ultimately rejected

as being not pressed; Thereafter, Assistant Commissioner,

Rajshahi, evicted the writ-petitioners from the case

property forcefully with the help of police on 13.02.2014

and the same was handed over to writ-respondent no.7; It

is also stated the value of the suit property was fixed

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at Tk.35,17,717/- in auction, out of which writ-

respondent no.6 received 30% from writ-respondent no.7;

The balance money, as agreed, is payable within

15(fifteen) years in equal installment @ Tk.13,608/- per

month; It has also asserted that the case land was the

homestead of the writ-petitioners, from which, they were

evicted by illegal means; As such, the writ-petitioners

invoked the writ jurisdiction.

Upon hearing the learned Advocate for the

petitioners, a Division Bench of the High Court Division

issued a Rule Nisi upon the respondents.

Writ-respondent no.7 contested the Rule by filing an

affidavit-in-opposition stated, interalia, that the

property in question has been transferred to her in

accordance with law and since then she has been owning

and possessing the land by depositing installments; The

petitioners filed the writ petition after long period of

20 years from the date of judgment and decree passed in

1994 and therefore, the Rule issued by the High Court

Division is liable to be discharged.

 7

After contested hearing, a Division Bench of the High

Court Division vide impugned judgment and order dated

31.01.2016 made the Rule absolute with following

direction:

“The respondents are directed to restore

possession of the case property infavour of
the petitioners within 60(sixty) days from
the date of receipt of the copy of this
judgment.”

Feeling aggrieved, the writ-respondent no.7 as

petitioner filed Civil Petition for Leave to Appeal

No.1259 of 2016 before this Division and obtained leave

granting order dated 30.10.2017.

Leave was granted considering the submissions made by

the learned Advocate for the petitioners which are as

follows:

I. Because, in view of the provision of

section 5(1) of the Artha Rin Adalat
Act, 1990, the financial institution
should file suit for realization of
loan money to the Artha Rin Adalat and
accordingly, Bangladesh House Building
Finance Corporation filed the suit
before the Artha Rin Adalat, Rajshahi.
The Artha Rin Adalat, Rajshahi had
exclusive jurisdiction to entertain and
dispose of the suit according to the
 8

said provision. In view of the fact,

the learned Judges of the High Court
Division erred in law in holding that
Artha Rin Adalat has no jurisdiction to
try the suit.

II. Because, the learned Judges of the High

Court Division committed gross
illegality in holding that Artha Rin
Adalat has got no jurisdiction to try
the case and the judgment and decree
passed by the said Court was a nullity.

III. Because, Bangladesh House Building

Finance Corporation rightly filed the
case before the Artha Rin Adalat,
Rajshahi but inadvertently in the cause
title it was written under Article 27
(1) of Order 7 of 1973. Mere mis-
description or mis-quotation or
mistaken use of a section of law in an
application itself will not debar a
Court to pass an appropriate order for
the relief sought provided that from
the facts stated in the application,
the relief can be given under a
different provision of the law.

IV. Because, the learned Judges of the High

Court Division made the Rule absolute
relying upon the decision reported 11
ADC 291, 49 DLR (AD) 80 which is quite
distinguishable from the facts of the
present case.

V. Because, the financial institution had

option either to bring a suit under
 9

section 5(1) of the Act or to take

recourse of the special procedure
providing in relevant law but the
learned Judges of High Court Division
erred in law in not considering this
proposition of law.

Consequently, this civil appeal arose.

Mr. Nurul Amin, learned Senior Advocate summaries his

argument in line with the submissions made in the leave

granting order.

Mr. Probir Neogi, learned Senior Advocate appearing

for the respondents supports the impugned judgment and

order passed by the High Court Division.

Heard learned Advocates for the respective parties.

Perused the papers/documents contained in the paper book.

It appears that when Most. Ambia Khatun failed to

deposit installments of loan amount and then the writ-

respondent no.6, the Corporation filed Miscellaneous Case

No.27 of 1994 before the Artha Rin Adalat, Rajshahi,

under Article 27(1) of P.O. No.7 of 1973 for recovery of

outstanding dues by selling the mortgaged property. The

miscellaneous case was decreed ex-parte by the Artha Rin

 10

Adalat vide judgment and decree dated 08.11.1994. The

decree holder writ-respondent no.6 filed Execution Case

No.34 of 1995 before the Artha Rin Adalat, Rajshahi,

which was transferred to the Artha Rin Adalat No.3,

Rajshahi and renumbered as Miscellaneous Execution Case

No.24 of 2004. In the meantime, the mortgaged property

was put in auction on 11.09.2002 and on the date of

auction the Corporation alone participated in the bid and

purchased the property and obtained registered sale

certificate through court on 21.02.2003 but it did not

take over possession of the case property. Subsequently,

the Corporation put the property in auction on 07.07.2010

and added writ-respondent no.7 became the highest bidder

and ultimately got possession.

The question is to be decided whether the Artha Rin

Adalat was competent or had jurisdiction to deal with an

application filed under Article 27 of the P.O. No.7 of

1973.

Section-5 of the Artha Rin Adalat Act, 1990 (Act No.

IV of 1990), briefly, the Act, was promulgated on

28.01.1990 which runs as follows (relevant portion):

 11

5| A_© FY Av`vj‡Zi ÿgZv I GLwZqvi|-(1) Ab¨ †Kvb AvB‡b hvnv wKQzB _vKzK
bv †Kb, Avw_©K cÖwZôv‡bi FY Av`vq msµvšÍ hveZxq gvgjv A_© FY Av`vj‡Z
`v‡qi Kwi‡Z nB‡e Ges D³ Av`vj‡ZB Dnv wb®úwË Kwi‡Z nB‡e:

Z‡e kZ© _v‡K †h, †Kvb AvBb Øviv †Kvb Avw_©K cÖwZôvb cÖwZôv Kiv nBqv _vwK‡j
Ges D³ AvB‡b Dnvi FY Av`v‡qi Rb¨ †Kvb we‡kl weavb ev c×wZ _vwK‡j †mB
weavb ev c×wZ GB avivi weavb Øviv ÿzbœ nB‡e bv|
-----------------
(2) -------------
(3) -------------
(4) -------------
(5) -------------
(6) -------------

On consideration of section-5(1) of the Act, it

appears that the section speaks that notwithstanding

anything contained in any other law, all cases relating

to realization of loan by any financial institution will

be heard and disposed of by the Artha Rin Adalat but a

condition or a proviso is attached with it to the effect

that if any financial institution has got it’s own Rules

and regulations for realization of the loan then that

financial institution shall follow the provisions of

those Rules and regulations for realization of their own

loan as provided under the condition attached to section-

5(1). So, evidently section-5(1) clearly speaks that if

any special provisions are made for realization of loan

 12

by any financial institution in its own special law, the

same will be guided by those Rules and regulations and

will not be affected or hit by the provisions of the

Artha Rin Adalat Act, 1990.

Again, P.O. No.7 of 1973 has made special provisions

for realization of the Corporation’s loans from the

borrowers in Articles 26 and 27. Article 26(1) provides

that when a borrower or his surety makes default in

repayment etc., the Corporation notwithstanding the

provisions of any other law may, without the intervention

of any court, sell any property pledged, mortgaged, etc.

Sub-Article(3) provides that all sums due to the

Corporation from the borrower or his surety shall be

recoverable as arrears of land revenue. Article 27(1)

provides that where by reason of the breach of any

agreement by the borrower the Corporation becomes

entitled to require the immediate payment of the amount

due by the borrower to the Corporation, any officer of

the Corporation --------- may apply to the District Judge

--------- for anyone or more of the following reliefs,

namely:
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(a) An order for the sale of any property or

properties pledged, mortgaged --------- by
the borrower.

(b) For an injunction restraining the borrower

or his -------- surety --------

(c) For an ad-interim attachment --------

Evidently, the Corporation is a financial institution

and loans to the people for construction of their

buildings with certain terms and conditions. In the P.O.

No.7 of 1973 Article 27 provides provisions for

institution of cases before the learned District Judge

for realization of its loan and detailed procedure has

also been prescribed therein. Further, Article 27(9) of

P.O. No.7 of 1973 provides that an order under this

Article for attachment or sale of the property shall be

carried into effect as far as may be in the manner in the

Code of Civil Procedure, 1908, and for the attachment or

sale of the property in execution of a decree the

Corporation would be treated as decree holder. There is

also provision for preferring appeal against a decree

passed by the learned District Judge under Article 27 of

the said order to the High Court Division. So, it is

clear that complete provision has been incorporated in

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P.O. No.7 of 1973 for realization of its own loan through

the court of the District Judge. The question as raised

by the learned Advocate for the appellant is no longer a

res-Integra because the answer has been given in our

jurisdiction in so many cases. In the case of Jahan Ara

Akhtar vs. BHBFC, reported in 47 DLR 158, it is held:

“The cases for realization of loan of the

House Building Finance Corporation shall be
instituted in the court of the learned
District Judge and the same would be heard
and disposed of by the learned District
Judge according to the provision of Article
27 of P.O. No.7 of 1973”

This judgment was affirmed by the Appellate Division

in the case of BHBFC vs. Jahan Ara Akhtar, reported in 49

DLR (AD), 80.

Again, the term ‘jurisdiction’ is a term of art. It

is an expression used in a variety of senses and draws

colour from its context. Therefore, to confine the term

‘jurisdiction’ to its conventional and narrow meaning

would be contrary to the well settled interpretation of

the term. The expression ‘jurisdiction’, as stated in

 15

Halsbury’s Laws of England, Volume 10, paragraph 314, is

as follows:

“Meaning of ‘jurisdiction’: By
‘jurisdiction’ is meant the authority which
a court has to decide matters that are
litigated before it or to take cognizance of
matters presented in a formal way for its
decision. The limits of this authority are
imposed by the statute, charter or
commission under which the court is
constituted, and may be extended or
restricted by similar means.

If no restriction or limit is imposed the

jurisdiction is said to be unlimited. A
limitation may be either as to the kind and
nature of the claims and matters of which
the particular court has cognizance, or as
to the area over which the jurisdiction
extends, or it may partake of both these
characteristics.”

Again, in American Jurisprudence, Volume 32A,

paragraph 581, it is said that:

“Jurisdiction is the authority to decide a

given case one way or the other. Without
jurisdiction, a court cannot proceed at all
in any case; jurisdiction is the power to
declare law, and when it ceases to exist,
the only function remaining to a court is
that of announcing the fact and dismissing
the cause.”
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The Supreme Court of India, in the case of Foreshore

Co-operative Housing Society Limited and Ors. vs. Praveen

D. Desai and Ors., reported in (2015) 6 SCC 412, observed

that:

“It is well settled that essentially the

jurisdiction is an authority to decide a
given case one way or the other. Further,
even though no party has raised objection
with regard to jurisdiction of the court,
the court has power to determine its own
jurisdiction. In other words, in a case
where the court has no jurisdiction; it
cannot confer upon it by consent or waiver
of the parties.”

In the case of Md. Selim Hossain vs. Shahabuddin

Ahmed and others, reported in 11 ADC 291, this Division

held:

“Mere failure to raise objection as to the

jurisdiction of a court to hear and try a
suit or a case or in others words, mere
surrendering to the jurisdiction of a court,
jurisdiction cannot be conferred to a court
if it is found that the court which heard or
disposed of the suit or the case had no
jurisdiction to hear such suit or case as
the case may be. Because the decree or order
passed by a court without jurisdiction is a
nullity and such nullity, in no way, is
curable or immune from being challenged. So,
in the instant case, if any of the writ-
 17

petitioner failed to take any objection

against the disposal of the suit by the
Artha Rin Adalat, the decree passed therein
shall not get the seal of validity or shall
not be immune from attacked or being
challenged.”

Thus, it is the settled principle of law laid down by

the Apex Court of Various Jurisdictions including this

Division by a long line of decisions that the question of

jurisdiction cannot be conferred to a court if it is

found that the court has no jurisdiction to try the

suit/case as the case may be.

In the premises above, we are of the view that the

High Court Division did not commit any illegality in

declaring the judgment and decree dated 08.11.1994 in

Miscellaneous Case No.27 of 1994, auction sale dated

11.09.2002 and subsequent auction sale dated 07.07.2010

and sale certificate dated 06.06.2011 in respect of the

case property to have been passed and issued without any

lawful authority and are of no legal effect.

Accordingly, the civil appeal is disposed of.

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Judgment and order passed by the High Court Division

in Writ Petition No.4546 of 2014 is maintained.

However, Artha Rin Adalat, Rajshahi, is directed to

return the plaint of Miscellaneous Case No.27 of 1994 to

the House Building Finance Corporation to facilitate it

to file the same in proper jurisdiction if, it so

advised.

House Building Finance Corporation is directed to

return the deposited auction money to the auction

purchaser of this appeal and thereafter, to takeover

possession of the auction property from her.

However, no order as to costs.

C.J.

J.

J.

J.

J.
The 25th October, 2022
/Jamal.B.R./Words-*3202*