MOMTAZUDDIN Vs. YAKUB ALI

JUDGEMENT

(1.) This appeal by leave is from judgment and order dated 9 December, 1992 passed by a Single Judge of the High Court Division in revision, Civil Revision No. 2112 of 1992, making the Rule absolute in part and setting aside the order dated 9.6.92 passed by the District Judge, Dhaka in Title Appeal No. 218 of 1992 admitting the same and staying all further proceedings of Title Execution Case No. 33 of 1987 of the 3rd Court of Subordinate Judge, Dhaka.

(2.) Material facts of the case are, that the appellants were defendants in a suit for specific performance of contract, Title Suit No. 120 of 1980, in the 1st Court of Subordinate Judge, Dhaka brought by the respondent and others which was decreed ex parte on 26.1.81 and the decree was drawn up on 13.7.81. Alleging that the summons were fraudulently suppressed in the suit and that the appellants came to know about the said decree and the execution case, Title Execution case No. 33 of 1987, for the first time on 15.5.92 when Police went to the land for giving delivery of possession, they, inter alia, filed Title Appeal No. 218 of 1992 against the said ex parte decree before the District Judge, Dhaka on 9.6.92. The appeal was admitted and the execution case stayed by an order passed on the same day.

(3.) On 29.6.92 the respondent filed an application for setting aside the above order on the ground, amongst others, that the appeal being prima facie barred by 10 years 301 days and there having been no application under section 5 of the Limitation Act for condonation of delay, the order admitting the appeal was illegal and without jurisdiction. The appellants opposed the application. The learned District Judge by his order dated 14.7.92 rejected the application holding, inter alia, that "the appellants in their Memo of Appeal have taken the ground that there was suppression of summons and they had no knowledge about the ex parte decree before 7.6.92. The appellants not being aware of the decree before 7.6.92 the question of filing an application under section 5 of the Limitation Act explaining each day's delay does not arise. The question whether the appellants had knowledge about the decree is a matter for investigation at the time of hearing of the appeal. If at the time of hearing the appellants by reference to papers of the lower court records can satisfy the suppression of summons and absence of knowledge about the ex parte decree before the date alleged by them they will entitle themselves to relief and on their failure to do so they will go out of court. On the face of allegation about non-service of summons I do not think that an order was required to be passed condoning the delay before admission of the appeal".