ABUL KHAIR MIA Vs. ABDUL LATIF SARDAR

JUDGEMENT

(1.) This appeal by special leave is directed against the judgment and order passed by the High Court Division in Civil Revision Case No. 767 of 1974.

(2.) Plaintiff appellant instituted Title Suit No. 3 of 1966 in the 3rd Court of Subordinate Judge, Dacca against the respondents for ejectment after termination of tenancy under section 109 of the Transfer of Property Act. The suit was filed on 12-1-66 and it was decreed on 23-2-66 ex-parte. The decree was put into execution immediately and the Process Server went to the suit property on 21-3-66 to execute the decree. The plaintiffs' case is that the defendant obstructed the Process Server. However, eventually, the respondents were evicted from the premises with the police help on 5-6-66. Respondents filed an application under Order 9, rule 13 of the Code of Civil Procedure on 9-6-68, to set aside ex parte decree which led to the Miscellaneous Case No. 93 of 1966.

(3.) The trial Court found that the processes were served in accordance with law. The petition was barred by limitation because the defendant had knowledge of the decree as far back as on 21-3-66 when be first resisted Process Server and accordingly dismissed the miscellaneous case. The Appellate Court below, however, found that the summons were suppressed and the exparte decree was obtained fraudulently and therefore, the decree was liable to be set aside but the Miscellaneous Case was barred by limitation inasmuch as the defendant had knowledge of the decree when the Process Server was obstructed in executing the writs of attachment and delivery of possession on 21-3-66. In this view of the matter the appeal was dismissed. On revision the High Court Division, however, noticed that the two mokabila witnesses were not examined and the evidence of the Process Server did not inspite any confidence. Moreover, the evidence of the defendant was not at all considered by the Courts below and therefore, the High Court Division arrived at the conclusion that the finding that the judgment-debtor had knowledge of the decree on 21-3-66 was perverse. The High Court Division further noticed that the summons bad been suppressed and the decree was obtained ex parte fraudulently. This finding of fact was arrived at by the appellate Court below also. The High Court Division considered that this finding was arrived at on evidence and then it proceeded to consider the nature of such decree and observed that the decree-holder by his own act got a fraudulent decree and in pursuance of that took possession of the premises and demolished the building and reconstructed a new one. It observed further that the decree-holder could not be allowed to take advantage of his own fraud. In this view of the matter the ex parte decree was set aside and the case was sent back to the trial Court for disposal of the suit in accordance with law. Leave was granted to consider: