ARABINDA DAS Vs. SURA BALA DAS

JUDGEMENT

(1.) The subject matter of challenge in this Rule arising out of an application under section 115 of the Code of Civil Procedure is judgment and order dated January 31, 1991 recorded by the learned Additional District Judge, First Court, Brahmanbaria reversing an order dated November 19, 1981 passed in Miscellaneous Case No. 96 of 1981 under the provision of rule 9 of Order 22 of the Code of Civil Procedure.

(2.) The decision proposed to be given in this Rule does not call for any detailed recounting of facts except that predecessor of the opposite party Nos. 1 and 2 as plaintiffs laid a suit being Title Suit No. 199 of 1960 in the Second Court of Munsif, Brahmanbaria for a decree of partition with respect to schedule Ka and Kha properties detailed in the plaint. The defendant Nos. 4 to 6 and 8-9 resisted the suit by presenting two separate written statements traversing all the material allegations made in the plaint. The suit was decreed in preliminary form on 27-09-1961 on contest against the defendants. An appeal being Title Appeal No. 302 of 1961 had been carried by the defendants but without any success. The appeal was dismissed. The appellate decree was also challenged before the High Court Division in a Second Appeal and the preliminary decree recorded by the trial Court was maintained. Proceeding for drawing up a final decree commenced. For effecting final decree an Advocate Commissioner was appointed. Report had been submitted by the learned Advocate Commissioner but the said report stood rejected on the basis of a written objection preferred against the Report by an order dated 24-06-1977. The defendant No. 5 on 18-05-1978 presented an application for recording an order of abatement taking the stand that defendant No. 10 died 9 years ago. Thereafter, the decree-holder plaintiffs filed an application on 23-08-1978 for substitution of the heirs of deceased-defendant No. 10. The learned Munsif by his order dated 04-03-1981 recorded an order of abatement. The decree-holder plaintiffs, thereafter, filed an application under the provision of rule 9 of Order 22 of the Code of Civil Procedure for setting aside the said order recording abatement. The learned Munsif by his order dismissed the Miscellaneous Case. In recording dismissal he took the view that the application had not been properly framed inasmuch as description of the parties as required under the provision of Code of Civil Procedure had not been given. The plaintiffs felt aggrieved by the above decision and sought setting aside the same through a medium of appeal being Miscellaneous Appeal No. 14 of 1984 before the Court of District Judge, Brahmanbaria. The learned Additional District Judge, First Court, Brahmanbaria heard the appeal and by his judgment and order dated 31-01-1991 allowed the appeal, set aside the order dated 19-11-1981 recording abatement in Miscellaneous Case No. 96 of 1981 and allowed the petition preferred by the plaintiffs under the provision of Order 22 rule 9 of the Code of Civil Procedure. The learned appellate Judge also brought on record the legal heirs of the deceased-defendant No. 10 and directed the suit to be proceeded with.

(3.) Feeling aggrieved of the above adjudication, the defendant No. 4 (Ka) as petitioner approached this Court in an application under section 115 of the Code of Civil Procedure and obtained the present Rule.