PARVEEN BANU @ PURNIMA Vs. BANGLADESH HOUSE BUILDING FINANCE CORPORATION

JUDGEMENT

(1.) These two appeals by leave, Civil Appeal No. 68 of 1989 by the plaintiffs and Civil Appeal No. 72 of 1989 by defendant No. 4, arise out of the same judgment and decree dated 16 February, 1989 passed by a Division Bench of the High Court Division, Dhaka in First Appeal No. 46 of 1988 allowing the same "as at presently constituted" and decreeing "the plaintiffs' suit, as amended" upon setting aside the judgment and decree of the Subordinate Judge, 3rd Court, Dhaka passed in Title Suit No. 269 of 1987.

(2.) The facts leading to these appeals are that one MA Naser, a Film Producer and Distributor in the then East Pakistan, took a loan of Tk. 40,000/- from the House Building Finance Corporation, defendant No. 1, in 1964 and constructed a residential house on his plot No. 8, Block No. N/W(J) Gulshan Model Town, Dhaka (Property in suit). Defendant No. 1 filed Miscellaneous Case No. 88 of 1976 in the Court of District Judge, Dhaka under Article 27 of President's Order No. 7 of 1973 for the realisation of loan money against MA Naser, the loanee and 2 others i.e. Dhaka Improvement Trust (Defendant No. 3) and the Government of the People's Republic of Bangladesh represented by the Secretary, Ministry of Public Works (defendant No. 2) and the said case was decreed ex parte on 21.9.1977. Thereafter, in pursuance of the said decree, Money Execution Case No.7 of 1978 was filed by the decree-holder (House Building Finance Corporation) and in the said Execution case the mortgaged property (suit property) was sold in auction on 30.4.1985 by the District Judge, Dhaka at a price of Tk. 34,62,500/- and defendant No. 4 auction purchased the same. The auction sale has been confirmed on 27.12.1986 and the sale Certificate has been issued by the District Judge, Dhaka on 18.1.1987 in favour of the auction purchaser who had to pay in total Tk. 41,13,750/00.

(3.) The plaintiffs filed Title Suit No. 555 of 1985 in the First Court of Subordinate Judge, Dhaka which was, on transfer, re-numbered as Title Suit No. 269 of 1987 in the 3rd Court of Subordinate Judge, Dhaka. There were three main prayers of the plaintiffs in the said suit which are as follows: