Enayet Hossain Vs. Nur Islam Howlader, V ADC (2008) 580

Case No: Civil Petition for Leave to Appeal No. 1131 of 2005

Judge: Md. Ruhul Amin ,

Court: Appellate Division ,,

Advocate: Md. Nawab Ali,,

Citation: V ADC (2008) 580

Case Year: 2008

Appellant: Enayet Hossain

Respondent: Nur Islam Howlader

Subject: Procedural Law,

Delivery Date: 2006-11-5

 
Supreme Court
Appellate Division
(Civil)
 
Present:
Md. Ruhul Amin, J.
M.M. Ruhul Amin, J.
 
Enayet Hossain
....................................Petitioner
Vs.
Nur Islam Howlader being dead his heirs: Nurjahan Begum & others
……………………....Respondents.
 
Judgment
November 5, 2006.
 
Code of Civil Procedure (V of 1908)
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)
 
Lawyers Involved:
Md. Nawab Ali, Advocate-on-Record-For the Petitioner.
Not represented- the Respondents.
 
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 ex parte on 16.01.1971. The respondent No. 1 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 ex parte 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 parte 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 ex 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 of res 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. 1, 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 limitations 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.
 
Accordingly, the leave petition is dismissed.
 
Ed.