REAZUL HOQUE MOLLA Vs. AFIZULLAH MOLLAH @ SHAFIUDDIN MOLLA

JUDGEMENT

(1.) In this appeal by leave, at the instance of the defendant, the short point for consideration is whether the learned Judge of the High Court Division was justified in selling aside in revision the order of the Assistant Judge allowing a Miscellaneous Case under Order 9, rule 13 of the Code of Civil Procedure.

(2.) Facts of the case, briefly, are that the respondent-plaintiff instituted Title Suit No.34 of 1982 in the Court of Assistant Judge, Narsingdi for specific performance of contract against his father, Danis Ali Molla. The suit was re-numbered as Title Suit No.20 of 1984 on transfer to the Court of Assistant Judge, Monohordi. Danis Ali Molla died during pendency of the suit and his heirs including the appellant (a son) were substituted in his place. The suit was decreed ex parte on 31.1.83. The appellant filed an application under Order 9, rule 13 C. P. C. for selling aside the ex parte decree which was registered as Miscellaneous Case No.23 of 1983. It was alleged that the summons was not served upon the appellant and that he came to know about the ex parte decree for the first time on 10.2.83.

(3.) Plaintiff-respondent contested the miscellaneous case asserting that the summons was duly served upon all the heirs of Danis Ali Molla including the appellant and that the appellant had full knowledge of the proceeding but even then he did not come to contest the suit. The learned Assistant Judge by order dated 29.5.84 allowed the Miscellaneous Case subject to payment of Tk.200/- by the appellant to the plaintiff. Plaintiff then went in revision against the said order and a learned Judge of the High Court Division, Dhaka, by the impugned Judgement and order dated 3 March 1987 made the rule absolute and set aside the order of the learned Assistant Judge.