ALHAJ MOKTER HUSSAIN TALUKDER Vs. AINUDDIN AHMED

JUDGEMENT

(1.) Plaintiff-petitioner filed Title Suit No. 301 of 1959 in the First Court of the Assistant Judge, Patuakhali which was dismissed for default whereupon an application under Order 9 rule 9 of the Code of Civil Procedure was filed for setting the dismissal aside. The resulting Miscellaneous Case No. 407 of 1980 was also dismissed for default and again an application under Order 9 rule 9 read with section 151 CPC was filed for setting aside the dismissal order in the miscellaneous case. Upon objection raised by the defendant the second Miscellaneous Case No. 71 of 1982 was dismissed as not maintainable. The said order was upheld in appeal by the learned Additional District Judge, Patuakhali and then in revision by a learned Single Judge of the High Court Division (Barisal Bench). This petition is from the judgment and order of the learned Single Judge discharging the Rule in Civil Revision No. 125 of 1984.

(2.) Mr. AK Badrul Huq, learned Advocate for the petitioner, submits that the learned Judge of the High Court Division erred in law in holding that the courts below committed no illegality in holding that the subsequent application under Order 9 rule 9 CPC was not maintainable. His contention is that by reason of section 141 CPC an application under Order 9 rule 9 is maintainable for setting aside an order of dismissal of an application under the same provision i.e. under Order 9 rule 9 notwithstanding the fact that an appeal is provided under Order 43 rule 1 CPC from such an order.

(3.) The contention has been fully answered in the negative in the impugned judgment on the basis of decisions of the Dhaka High Court beginning from PLD 1953 (Dhaka) 183 and as followed later on in the High Court Division. The learned Advocate has not been able to cite any contrary decision from our own jurisdiction although there are contrary decisions of other High Courts. In such circumstances we shall be slow to unsettle a settled view followed for a long time.