Case No: Civil Petition for Leave to Appeal No. 715 of 1996
Judge: Bimalendu Bikash Roy Choudhury,
Court: Appellate Division ,,
Advocate: Mr. Abdul Quayum,,
Citation: 54 DLR (AD) (2002) 35
Appellant: Government of Bangladesh
Respondent: Ramananda Sarker
Subject: Procedural Law,
Delivery Date: 2000-05-15
Latifur Rahman, CJ.
Bimalendu Bikash Roy Choudhury, J.
AMM Rahman, J.
Mahmudul Amin Choudhury, J.
Kazi Ebadul Hoque, J.
Government of Bangladesh
May 15th, 2000.
The Code of Civil Procedure, 1908 (V of 1908)
Order XX VII rule 4
Service of summons on the Government Pleader is good service on the Government. ……………..(8)
The Limitation Act, 1908 (IX of 1908)
Article 95 of the Limitation Act in its first schedule set out the principle for nullifying a decree obtained by fraud or such other relief gained out of fraud.
Abdul Quayuam, Deputy Attorney-General, instructed by Mvi Md Wahidullah, Advocate-on-Record-For the petitioner
Not represented—The Respondents.
Civil Petition for Leave to Appeal No. 715 of 1996.
(From judgment and order dated 7 July 1996 passed by the High Court Division in Civil Revision No. 598 of 1990.)
Bimalendu Bikash Roy Choudhury J.
This is a petition by the plaintiff for leave to appeal from the judgment and order dated 7 July 1996 passed by the High Court Division in Civil Revision No. 598 of 1990 discharging the Rule.
2. The revision case has arisen in this way. The plaintiff (Government of Bangladesh) brought Other Class Suit No. 791 of 1989 in the Court of Senior Munsif (Assistant Judge), Kishoreganj, against the respondents for declarations that the ex parte decree dated 26 June 1980 passed by the said court in Other Class Suit No. 287 of 1980 was illegal, collusive and not binding upon them and that the defendants had not acquired any title to the suit land.
3. The defendants resisted the claims of the plaintiff.
4. The trial Court found that the summons of the 1980 suit was served on the Government Pleader, that he had acted negligently by not contesting the suit and that the suit land, a char of a river, had vested in the Government. As a result the said Court came to the conclusion that the plaintiff was entitled to the reliefs and decreed the suit accordingly.
5. The defendants took an appeal, being Other Class Appeal No. 126 of 1988, therefrom. The appellate Court reversed the decree of the trial Court on the findings that the summons was duly served upon the Government and that the ex parte decree was not obtained by practicing fraud on the court.
6. The plaintiff then preferred the above civil revision case before the High Court Division which, by the impugned judgment and order, discharged the Rule.
7. It is contended on behalf of the petitioners that, on the facts and in the circumstances of the case, the High Court Division acted illegally in refusing to interfere with the judgment of the appellate Court.
8. It appears that all the courts concurrently found that the summons of the suit which was sought to be set aside was served on the Government Pleader under Order XXVII, rule 4 of the Code of Civil Procedure, service of summons on the Government Pleader is good service on the Government. That apart, there has been no finding of fraud by any of the courts below. There is therefore no ground for interference.
9. By the way, it may be observed that the High Court Division is not correct in its view that the limitation to have an ex parte decree set aside on the ground of fraud is 30 days. It is Article 95 of the First Schedule to the Limitation Act which governs a suit to set aside a decree obtained by fraud or for other relief on the ground of fraud. It provides 3 years from the time when fraud becomes known to the party wronged.
The petition is dismissed.