Guarantor has no right to seek rejection an order of schedule amendment of the property

In the full text of a verdict the Appellate Division of the Supreme Court has observed that a guarantor of a loan cannot seek rejection of an order of amending the schedule of the property in an execution case. 

The apex court said, “The guarantor judgment-debtor has no authority to file any application before the Artha Rin Adalat to set aside the order amending the schedule of the property in execution case.” 

A three-member bench of the Appellate Division headed by Chief Justice Hasan Foez Siddique passed the observation after hearing a leave to appeal petition filed by the Midland Bank Limited over a loan issue. 

According to the verdict, Midland Bank Limited in 2016 filed a case with the Artha Rin Adalat no 4 in Dhaka for realization of loan money amounting to Tk 125.37 million from a party. Upon hearing the parties the judge of the Artha Rin Adalat decreed the suit on June 24 in 2019 in favor of the bank. 

In order to execute the said order the bank authorities filed an Athra Execution case with the same court on October 21 in 2019. During the proceedings of the execution case the bank authorities filed an application for striking out five buses from the schedule of the execution case saying that those were sold out earlier on request of the principal debtor and the price was adjusted with the loan. The court allowed the application. 

Then the guarantor of the loan filed an application with the court for setting aside the order that excluded five buses from the schedule of the properties. However, the Artha Rin Adalat rejected that application. 

At that stage, the guarantor in 2021 as petitioner filed a writ petition with the High Court challenging the order of the Artha Rin Adalat regarding the execution case and obtained a rule. 

After hearing both the parties, the High Court made the rule absolute and directed the Artha Rin Adalat no 4, Dhaka, to take necessary step for restoring the schedule of the movable properties in the schedule of the execution case. 

Being aggrieved by the judgment and order passed by the High Court the decree-holder bank filed leave to appeal petition with the Appellate Division of the SC. After hearing the appeal petition the apex court announced its verdict on January 16 in 2023. The full text of the verdict released on the SC website recently. 

The apex court said that the High Court failed to consider and appreciate the cardinal principle of law that no one should be allowed to take advantage of his own wrong action. 

The full text also read that the bank has just complied with the request of the principal loanee and the sale money was adjusted with the debtor’s loan. After such adjustment the guarantor, who is the wife of the principal loanee, filed the writ petition stating that such step of the bank is illegal and the Artha Rin Adalat has proceeded beyond the scope of law by striking out the five buses from schedule of the execution case. 

“In view of the above facts and circumstances, we have no hesitation to hold that the guarantor in connivance of the principal debtor in order to frustrate the execution case has taken a device to prolong the matter by filing an application before the Artha Rin Adalat and, thereafter, before the High Court,” also read the verdict. 

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