ENAYET HOSSAIN Vs. NUR ISLAM HOWLADER

JUDGEMENT

(1.) This petition for leave to appeal is directed against the judgment and order dated 20.06.2005 passed by a Single Bench of the High Court Division in Civil Revision No.2384 of 1991 making the Rule absolute.

(2.) Short facts are that father of the petitioners filed Title Suit No. 58 of 1970 in the 6th Court of Munsif (now Assistant Judge), Barisal. The suit was decreed ex parte on 16.01.1971. The respondent No. 1 brought Miscellaneous Case No.15 of 1990 under Order 9, Rule 13 of the Code of Civil Procedure for setting aside the ex parte decree on the ground that the summonses of original suit was not duly served upon the defendants and the names and addresses of the defendants were wrong and the summonses were shown served in collusion with the process server. The petitioners resisted the said application by filing written objection denying the material averments of the application and stating, inter alia, that the summons of the original suit was duly served and the ex parte decree was rightly passed since the defendants failed to appear and contest the suit. They further contended that the miscellaneous case was barred by limitation having brought after 19 years of the ex parte decree by the son of one of the original defendants after his death. Their further case is that one Abdul Kader, the defendant No.3 in the said original Title Suit brought a similar case against the same ex parte decree being Miscellaneous Case No.7 of 1971 which was dismissed on 24.03.1972. Thereafter the second case brought by the son of another defendant (since deceased) is barred by principle of res judicata and hence the same is not maintainable.

(3.) The trial court allowed the Miscellaneous Case No. 15 of 1990 under Order 9 Rule 13 of the Code of Civil Procedure. Being aggrieved the respondent moved the High Court Division and the High Court Division after hearing made the Rule absolute.