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Execution case not ends with issuance of certificate

High Court Division (Civil Revisional Jurisdiction) Abdul Awal J FRM Nazmul Ahasan J Judgment August 19th, 2010 Salma Begum ………… ……………Petitioner vs Sonali Bank Limited and others ………..Opposite-Parties Artha Rin Adalat Ain (VIII of 2003) Section 33(5) The execution case does not come to an end with the issuance of a certificate under section 33(5) of the Ain. Rather, it remains alive till the possession of the property alleged to have been sold in auction, was handed over to the auction purchaser...(21) 15 MLR (AD) 20; 15 BLT (AD) 237; 15 BLT 425 ref. SB Bhandari with Shah Md Munir Sharif, Advocates-For the Petitioner. Moudud Ahmed with Raziuddin Ahmed, KP Bhowmik and Khalifa Shamsun Nahar, Advocates-For the opposite-Party No. 1. Md Hefzul Bari, Advoate-For the Opposite-Party No.2. Judgment Abdul Awal J : This Rule was issued calling upon the opposite parties to show cause as to why the impugned order dated 9-11-2009 passed by the learned Additional District Judge, 2nd Court Dhaka. in Miscellaneous Appeal No. 230 of 2009 should not be set-aside and for such order or further or orders passed as to this Court may seem fit and proper. 2. Opposite- Party No. 1 Sonali Bank Limited filed Artha Rin Suit No. 131 of 2003 on 26-4-2003 against the opposite-party No.4 and another impleading them as defendants for realization of TK. 47,40.875 (Forty seven lakh forty thousand eight hundred seventy five) contending, inter alia that one Saleha Khatun, who is now dead and her son Abdul Latif took loan to complete the under construction building of Saleha Khatun by mortgaging the schedule land including the structures thereon. The said suit was decreed ex parte on 27-9-2003. 3. Thereafter, an Execution Case bearing No. 355 of 2004 was started on 1-6-2004 pursuant to the execution case the executing Court invited tenders in respect of the schedule land to sell the same in auction. The tender notice was published in 'The Daily Protham Alo' and 'The Dainik Sangbad' on 13-8-2005, but no bidder was participated. Then, the decree-holder bank made a prayer to the executing Court on 8-1-2006 to issue certificate under section 33(5) of the Artha Rin Adalat Ain, 2003. Accordingly, a certificate under the said section was issued on 9-1-2007. On the basis of the said certificate the decree-holder bank invited tenders from the intending bidders for auction sale of the schedule property. The tender notice was published in 'The Daily Janakantha' on 23-4-2009, and on 28-4-2009 some officials of decree-holder bank along with some other persons went to the schedule property when they disclosed that they would take over the possession of the same as it was sold on auction. Following the invitation of tender the scheduled property was sold on auction and to that effect a deed was registered on 29-6-2009. 4. The petitioner along with three others filed an application on 4-5-2009 under Order XXI, rule 58 of the Code of Civil Procedure to the executing Court to release the schedule property, in question. The said petition was registered as Miscellaneous Case No. 27 of 2009. At the time of filing of the application a bond for 10% of the decretal amount was filed. The decree-holder bank appeared and contested the miscellaneous case. After hearing the parties the miscellaneous case was dismissed by an order dated 20-7-2009. 5. Being aggrieved by and dissatisfied with the impugned judgment and order, the petitioner along with others preferred an appeal before the learned District Judge, Dhaka. The said appeal was registered as Miscellaneous Appeal No. 230 of 2009. Thereafter, the said miscellaneous appeal, on transfer was disposed of by the learned Additional District Judge, 2nd Court, Dhaka, who after hearing the parties dismissed the appeal affirming the judgment and order of the trial Court. Against the said judgment and order the instant Civil Revision has been prepared. 6. Mr. SB Bhandari learned Advocate appeared along with Mr. Shah Md. Munir Sharif for the petitioner while Mr. Moudud Ahmed, learned Advocate appeared along with Mr. Raziuddin Ahmed, Mr. KP Bhowmik and Mrs. Khalifa Shamsun Nahar appeared for opposite-party No. 1 and Mr. Md. Hefzul Bari, learned Advocate appeared for opposite-party No.2. 7. Mr. SB Bhandari submits that the impugned judgment and order is erroneous. He submits that the petitioner along with three others preferred Miscellaneous Case No. 27 of 2009 as third party under Section 32(2) of the Artha Rin Adalat Ain, 2003 by furnishing 10% bond to the decretal amount. He submits that the deposit of 10% bond by the petitioner did not take into consideration by the appellate Court and the trial Court as well. His submission is that the petitioner was not aware as to the filing of the Artha Rin Case No. 131 of 2003 and the Execution Case No. 355 of 2004 prior to 28-4-2009 when some officials along with two others persons went to the schedule property disclosing the suit property was going to he sold in auction. Immediately, they Miscellaneous Case No. 27 of 2009 on 4-5-2009 without any delay. 'His submission is that the impugned judgment and order is illegal. Therefore, it is liable to be set-aside. 8. Mr Moudud Ahmed submits that the impugned order was once challenged in Writ Petition No. 7932 of 2009 and it was decided in a judgment and order dated 24-11-2004 delivered by a writ of this Court. Against the said judgment and order the writ petitioner preferred a Civil Petition for Leave to Appeal No. 199 of 2009 before the Appellate Division and the same has been disposed of as 'no order'. Mr Ahmed further submits that since the impugned judgment and order was thrashed out in a writ petition this revisional application does not lie and it embraces the doctrine of res judicata. He submits that as soon as the certificate under Section 33(5) of the Artha Rin Adalat Ain, 2003 was issued, the function of the executing Court comes to an end. His further submi