The executing court's discretion to set aside an auction sale requires evidence of material irregularity or fraud, as guided by statutory provisions, which were not present in this case.

At the instance of the decree-holder, namely, Rupali Bank Limited in Mortgage Decree Execution Case No. 48 of 2001, this rule was issued

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calling upon the opposite parties to show cause as to why the order dated 04.08.2010 passed by the learned Additional District Judge, 2nd Court, Narayanganj in Miscellaneous Appeal No. 23 of 2008 dismissing the appeal and affirming the order dated 07.05.2008 passed by the learned Joint District Judge and Artha Rin Adalat, Narayanganj in Miscellaneous Case No. 13 of 2008 rejecting the application of the petitioner filed under order XXI, rule 90 of the Code of Civil Procedure for setting aside the auction sale held on 06.04.2008 in the said Mortgage Decree Execution Case should not be set aside and/or such other or further order or orders passed as to this Court may seem fit and proper.

At the time of issuance of the rule, this court also stayed the operation of the impugned order dated 04.08.2010 passed by the learned Additional District Judge, 2nd Court, Narayanganj in Miscellaneous Appeal No. 23 of 2008 and all subsequent proceedings of Mortgage Decree Execution Case No. 48 of 2001 pending before the learned Joint District Judge and Artha Rin Adalat, Narayanganj initially for a period of 6(six) months which was lastly extended on 16.05.2011 for another 1(one) month. Record shows that no further extension was taken by the petitioner.

The short facts so figured in the instant revisional application are:

The petitioner as decree-holder of the Decree Execution Case as a plaintiff originally filed a Mortgage Suit bearing No. 31 of 2000 before the learned Joint District Judge, Narayanganj against the present opposite party nos. 2-4 impleading them as defendants for realization of defaulted loan amounting to taka 33,17,705/-. Though in the said suit, the opposite parties made as defendants entered appearance but at the time of hearing of the suit dated 15.11.2000, the defendants did not turn up resulting in, the suit was decreed ex parte for an amount of taka 33,17,705/- directing the defendants to pay the said amount with interest at the rate of 18% per annum within 45 days.

Since the defendants of the suit did not come forward to pay the decretal amount, the plaintiff as decree-holder then filed an execution case being Mortgage Decree Execution Case No. 48 of 2001 claiming an amount of taka 40,24,611/-. In course of the said execution case, the property so mortgaged with the decree-holder-bank was put on auction sale on 06.04.2008 when as many as three bidders participated in the auction and the learned Judge of the Artha Rin Adalat then accepted the bid so offered by the present opposite party no. 1 at taka 14,00,000/-. However, on the date of holding auction and accepting the bid of the auction purchaser, the decree-holder-bank filed objection for not accepting the bid asserting that the approximate value of the mortgaged property was taka 21,00,000/-. However, without entertaining the said objection, the learned Judge of the Artha Rin Adalat accepted the bid of the auction purchaser, herein the opposite-party no. 1 and following that, possession of the mortgaged property was handed over in his favour by registering sale deed. After that, the decree-holder on 28.04.2008 filed an application under order XXI, rule 90 of the Code of Civil Procedure for set aside the auction sale which gave rise to Miscellaneous Case No. 13 of 2008 stating similar assertion made on the date of auction sale that is, the value of the mortgaged property so offered is low and prayed for setting aside the sale. The said application was ultimately taken up for hearing by the learned Judge of the executing court and vide order dated 07.05.2008 dismissed the said Miscellaneous Case initiated under order XXI, rule 90 of the Code of Civil Procedure holding that, the decree-holder-bank has failed to assert that the value of the mortgaged property sold in auction is