KHAIRUN BEGUM Vs. ABDUL MALIK

JUDGEMENT

(1.) The appellants were defendants in Title Suit No. 93 of 1987 of the Court of Subordinate Judge, 1st Court, Moulvibazar. The suit was filed for a decree for specific performance of contract. The plaintiff alleged that kanu Miah, the predecessor of the defendants executed a bainpatra for sale of the suit land but delayed the execution of the deed on different pleas and died leaving behind the defendants as his heirs. When the plaintiff approached the defendants they also refused to execute any sale deed in favour of the plaintiff on the ground that the bainapatra was not genuine and was not executed by their predecessor Kanu Miah.

(2.) The defendants appeared and filed an application with a prayer for examination of the signature of Kanu Miah found in the bainapatra with his admitted signature and a date was fixed for depositing expert fee. But the defendant did not deposit the fee on that date. So the suit was fixed for peremptory hearing on 15.5.93 but on that date, in the absence of both the parties, the suit was dismissed for default. The plaintiff them filed an application under Order 9, Rule 4 of the Code of Civil Procedure and Misc. Case No. 14 of 1993 was started, that case was allowed ex-parte and the suit was restored to its original file and number and ultimately the suit was also decreed ex-parte on 1.11.1994.

(3.) The defendants then filed an application under Order 9, Rule 13 of the Code of Civil Procedure, which was registered as Misc. Case No. 20 of 1996 with a prayer for condonation of delay. But the trial Court disallowed the case on 20.10.1996. Then the defendants preferred an appeal, which is Misc. Appeal No. 1 of 1997, the appeal was allowed on 22.9.1997 and the suit was restored by setting aside the ex-parte decree.