Enayet Hossain Vs. Nur Islam Howlader

Appellate Division Cases

(Civil)

PARTIES

Enayet Hossain ………………….Petitioner.

-Vs-

Nur Islam Howlader being dead his heirs: Nurjahan Begum

& others ………….. Respondents.

JUSTICES

Md. Ruhul Amin J

M.M. Ruhul Amin J

Judgment Dated: 5th November 2006

The Code of Civil Procedure, Order 9, Rule 13

For setting aside the ex-parte decree on the ground that the summonses of original suit was not duly served upon the defendants and the names and addresses of the defendants were wrong and the summonses were shown served in collusion with the process server. ……………………..(2)

The High Court Division held that an application under Order 9 Rule 13 of the Code of Civil Procedure for setting aside the ex-parte decree is to be brought within 30 days from the date of ex-parte decree or from the date of knowledge of the aggrieved party. In the instant case the Miscellaneous Case No. 15 of 1990 was brought long after 21 years of the ex-parte decree. The High Court Division further held that the father and husband of the present petitioner did not bring any such case against the ex-parte decree. The case was brought after 21 years of the exparte decree stating that they came to know of the ex-parte decree on 15th Falgoon, 1396 B.S. The High Court Division in this connection considered the evidence of P.W.I, P.W.2 and P.W.3 in the Miscellaneous Case and held that they failed to prove that the petitioner knew about ex-parte decree on 15th Falgoon, 1396 B.S. The High Court Division also observed that earlier the respondent’s cousin brought Miscellaneous Case No.7 of 1971 for setting aside the same ex-parte decree but the same was dismissed on 24.03.1972. ………………………(5)

Considering the above facts and circumstances of the case the High Court Division found that the Miscellaneous Case was barred by both limitation as well as by principle of res-judicata and accordingly made the Rule absolute. ……………(6)

Md. Nawah AH, Advocate-on-Record. ………………….For the Petitioner

Respondents ……………..Not represented.

Civil Petition For Leave To Appeal No. 1131 of 2005

(From the judgment and order dated 20.06.2005 passed by the High Court Division in Civil Revision No.2384 of 1991.)

JUDGMENT

M.M. Ruhul Amin J: This petition for leave to appeal is directed against the judgment and order dated 20.06.2005 passed by a Single Bench of the High Court Division in Civil Revision No.2384 of 1991 making the Rule absolute.

2. Short facts are that father of the petitioners filed Title Suit No.58 of 1970 in the 6th Court of Munsif(now Assistant Judge) , Barisal. The suit was decreed exparte on 16.01.1971. The respondent No.l brought Miscellaneous Case No. 15 of 1990 under Order 9, Rule 13 of the Code of Civil Procedure for setting aside the ex-parte decree on the ground that the summonses of original suit was not duly served upon the defendants and the names and addresses of the defendants were wrong and the summonses were shown served in collusion with the process server. The petitioners resisted the said application by filing written objection denying the material averments of the application

and stating, inter alia, that the summons of the original suit was duly served and the exparte decree was rightly passed since the defendants failed to appear and contest

the suit. They further contended that the miscellaneous case was barred by limitation having brought after 19 years of the ex-partc decree by the son of one of the original defendants after his death. Their further case is that one Abdul Kader, the defendant No.3 in the said original Title Suit brought a similar case against the same cx-parte decree being Miscellaneous Case No.7 of 1971 which was dismissed on 24.03.1972. Thereafter the second case brought by the son of another defendant (since deceased) is barred by principle oi rcs-judicata and hence the same is not maintainable.

3. The trial court allowed the Miscellaneous Case No. 15 of 1990 under Order 9 Rule 13 of the Code of Civil Procedure. Being aggrieved the respondent moved the High Court Division and the High Court Division after hearing made the Rule absolute.

4. We have heard Mr. Md. Nawab Ali, the learned Advocate-on-Record for the petitioner

and perused the judgment of the High Court Division and other connected papers.

5. The High Court Division held that an application under Order 9 Rule 13 of the Code of Civil Procedure for setting aside the ex-parte decree is to be brought within 30 days from the date of ex-parte decree or from the date of knowledge of the aggrieved party. In the instant case the Miscellaneous Case No. 15 of 1990 was brought long after 21 years of the ex-parte decree. The High Court Division further held that the father and husband of the present petitioner did not bring any such case against the ex-parte decree. The case

was brought after 21 years of the ex-parte decree stating that they came to know of the ex-parte decree on 15th Falgoon, 1396 B.S. The High Court Division in this connection considered the evidence of P.W.I, P.W.2 and P.W.3 in the Miscellaneous Case and held that they failed to prove that the petitioner knew about ex-parte decree on 15th Falgoon, 1396 B.S. The High Court Division also observed that earlier the respondent’s cousin brought Miscellaneous Case No.7 of 1971 for setting aside the same ex-parte decree but the same was dismissed on 24.03.1972.

6. Considering the above facts and circumstances of the’ case the High Court Division found that the Miscellaneous Case was barred by both limitation as well as by principle of res-judicata and accordingly made the Rule absolute.

7. We have considered the materials on record and the submissions of the learned Advocate-on-Record. In the facts and circumstances of the case, we are of the view

that the High Court Division upon correct assessment of the materials on record arrived at a correct decision, that miscellaneous case was barred by limitation. There is no cogent reason to interfere with the same.

8. Accordingly, the leave petition is dismisse.

Source : V ADC (2008),580

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