Safiqueuddin Ahmed (Md) and another Vs. House Building Finance Corporation, 53 DLR (2001) 80

Case No: Civil Revision No. 8745 of 1991 (Dhaka)

Judge: Md. Joynul Abedin ,

Court: High Court Division,,

Advocate: Mr. Shaheed Alam,,

Citation: 53 DLR (2001) 80

Case Year: 2001

Appellant: Safiqueuddin Ahmed (Md) and another

Respondent: House Building Finance Corporation

Subject: Ex-parte Decree, Procedural Law,

Delivery Date: 2000-6-29

 
Supreme Court
High Court Division
(Civil Revisional Jurisdiction)
 
Present:
Md. Joynul Abedin J
 
Safiqueuddin Ahmed (Md) and another
……..………. Petitioners
Vs.
House Building Finance Corporation
……….……. Opposite Party
 
Judgment
June 29, 2000.
 
Bangladesh House Building Finance Corporation Order (PO if 1973)
Article 27(10)
Code of Civil Procedure (V of 1908)
Order IX rule 13
The Miscellaneous case under order 9, rule 13 of the code was incompetent against the ex parte order passed by the District Judge in Miscellaneous Case No. 28 of 1979 in view of Sub-Article (10) of Article 27 of President’s Order 7 of 1978, inasmuch as, the said ex parte order was liable to be challenged only by an appeal to the High Court Division. … (6)
 
Lawyers Involved:
Not represented- the Petitioners.
Shaheed Alam, Advocate — For the Opposite Party.
Civil Revision No.8745 of 1991(Dhaka)
Civil Revision No.195 of 1989(Rangpur)
 
JUDGMENT
 
Md. Joynul Abedin J.
 
This Rule calls in question the order dated 7.2.1989 passed by the learned District Judge, Dinajpur in Miscellaneous Case No. 36 of 1984 arising out of Miscellaneous Case No. 28 of 1979 filed by the House Building Finance Corporation under Presidents Order 19 of 1978 dismissing the Miscellaneous Case No. 36 of 1984 under Order 9, rule 13 of the Code of Civil Procedure.
 
2. House Building Finance Corporation as petitioner filed Miscellaneous Case No. 28 of 1979 against the loanee-petitioner for sale of mortgage property for recovery of the outstanding loan. The loanee-petitioner contested the aforesaid Miscellaneous Case No. 28 of 1979 by filing a written objection disputing the claim made by the House Building Finance Corporation. The aforesaid Miscellaneous Case was eventually allowed ex parte dated 23-5-1985. Accordingly, the loanee started Miscellaneous Case No. 36 of 1984 an application under Order 9, rule 13 of the Civil Procedure for setting aside the said ex parte stating that he could not take steps on 23-05-1984 on account of illness and also filed a medical certificate and the House Building Finance Corporation contested the said Miscellaneous Case No. 36 of 1984 by filing written objection.
 
3. The learned District Judge, after hearing parties disallowed the Miscellaneous Case setting aside the ex parte order on the ground that the loanee-petitioner could not prove his illness. Hence the present Rule.
 
4. None appears for the opposite party.
 
5. Mr. Shaheed Alam, the learned Advocate for the opposite party—House Building Corporation.
 
6. It appears from the perusal of the revisional application together with the papers filed the including the impugned order and the relevant law, Bangladesh House Building Finance Corporation Order, 1973 (President’s Order 7 of 1978) that the impugned order dismissing the Miscellaneous Case filed by the loanee-petitioner failed to prove the medical certificate by examining any competent witness. This apart, it appears the Miscellaneous Case No. 36 of 1984 under Order 9, rule 13 of the Code of Civil Procedure was incompetent against the ex parte order dated 23-5-1984 passed by the learned District Judge in Miscellaneous Case No. 28 of 1979 in view of Sub-Article (10) of Article 27 of President’s Order 7 of inasmuch as, the said ex parte order was only be challenged by filing an appeal to the High Court Division and not by an application under Order 9, rule 13 of the Code of Civil Procedure. In this view of the matter, the impugned order deserves no interference by this Court.
 
In the result, the Rule is discharged and the impugned order dated 7-2-1989 passed by the learned District Judge in Miscellaneous Case No. 36 of 1984 is hereby affirmed without any order as to cost.
 
Ed.