Present:

Mr. Justice Sheikh Abdul Awal

and

Mr. Justice Md. Mansur Alam

Civil Revision No. 1417 of 2019

In the  Matter of:

Shahena Aktar alias Rina

                              .......Plaintiff-petitioner.

        -Versus-

Abdul Zafur alias Zahur Miah and others

...Defendant-judgment debtor opposite parties

Mr. Toufiq Anwar Chowdhury, Advocate

 ……. For the Plaintiff petitioner.

Mr. Uzzal Bhwmick, Advocate.

......For the opposite party No.11

Heard on 19.11.2024, 27.11.2024, 01.12.2024 and Judgment on 02.12.2024

Sheikh Abdul Awal, J:

This Rule was issued calling upon the opposite parties to show cause as to why the impugned judgment and order dated 13.08.2018 passed by the learned Joint District Judge, 2nd Court, Sylhet  in  Miscellaneous  Case  No.  19  of  2018 staying  the Execution Case No. 06 of 2015 should not be set-aside and/or such other or further order or orders passed as to this Court may seem fit and proper.

The brief fact relevant for disposal of this Rule is that the petitioner  as  plaintiff  filed  Title  Suit  No.  18  of  2005  for partitioning the suit land in the Court of the learned Joint District Judge, 2nd Court, Sylhet. Ultimately, the suit was decreed ex parte by ex parte judgment and decree dated 05.02.2007. Thereafter, the decree holder plaintiff  in order to execute the decree filed Execution being Case No. 06 of 2015 and thereafter while the Execution case was in progress the defendant Nos. 11 and 12 filed Miscellaneous Case No. 19 of 2018 in the Court of the learned Joint District Judge, 2nd Court, Sylhet under Order IX, Rule 13 read with section 151 of the Code of Civil Procedure for setting- aside the ex-parte judgment and decree dated 05.02.2007. Soon thereafter the defendant Nos. 11 and 12 filed an application for staying all further operation of the execution case  No. 06 of 2015. The learned Joint District Judge, 2nd Court, Sylhet upon hearing the parties by his order No. 40 dated 13.08.2018 stayed all  further operation  of  the execution  case till  disposal of the Miscellaneous Case No. 19 of 2018.

Aggrieved  thereby  the  plaintiff-petitioner  preferred  this revision application and obtained the present Rule.

Mr.  Taufiq  Anwar  Chowdhury,  the  learned  Advocate appearing for the petitioner submits that in the case the summons were properly served upon the defendants although the defendants deliberately did not turn to contest the suit resulting the learned Joint District Judge passed the ex-parte judgment and decree in accordance with law after exhausting all the legal formalities and as such, institution of the Miscellaneous Case under Order IX, Rule 13 read with section 151 of the Code of Civil Procedure for setting-aside the ex-parte judgment and decree  only to deprive the plaintiff (decree-holder) from enjoying the fruit of the decree but the Executing Court without considering all these aspects of the case erroneously stayed all further proceeding of the Title Execution Case No 06 of 2015 and as such the same is liable to be set-aside.  Mr.   Chowdhury  further  submits  the   learned  Joint District Judge, 2nd Court, Sylhet as executing court having failed to consider that the partition suit No. 18 of 2005 was filed on 17.02.2005 and final decree was drawn up on 08.04.2015 and after  drawing  up  final  decree,  the  application  filed  by  the defendant Nos. 11-12 under order 9, Rule 13 was misconceived and motivated one and the same has been filed only to frustrate the  execution  case  thereby  reaching  a  wrong  decision  which occasioned a miscarriage of justice. Finally, the learned Advocate submits that the learned Joint District Judge, 2nd Court, Sylhet ought  to  have  considered  that  the  defendant  Nos.  11-12 approached  before  the  court  with  unclean  hands  with  sole intention to drag the delivery of possession of the suit land and in failing to do so committed an error of law resulting in an error in the impugned decision occasioning failure of justice. The learned Advocate  to  strengthen  his  submission  has  relied  on  the case reported in 6MLR (AD) 234.

Mr. Uzzal Bhowmick, the learned Advocate appearing for the opposite party No. 11, supports the impugned judgment and order, which was according to him just, correct and proper. He submits  that  admittedly  the  judgment  and  decree  was  passed exparte and thereafter on knowing about the facts of the exparte judgment and decree the defendant respondent Nos. 11-12 filed Miscellaneous Case No. 19 of 2018 for setting-aside the ex parte

decree  and  in  the  facts  and  circumstances  of  the  case,  if  the execution case arising out of ex parte judgment and decree is not stayed till disposal of the miscellaneous case, the whole purpose of the miscellaneous case  under Order IX, Rule 13 read with section 151 of the Code of Civil Procedure for setting-aside the ex-parte  judgment  and  decree  will  be  frustrated.  Finally,  the learned Advocate submits, it is on record that in the title suit no summons was served upon the defendants, fraud was involved in obtaining the decree and that the defendants have every chance of success in the miscellaneous case under Order IX, Rule 13 of the Code of Civil Procedure and considering all these aspects of the case as revealed from the materials on record the learned Joint District Judge justly passed the order of stay of the execution case till disposal of the miscellaneous case, which should not be disturbed.

Having heard the learned Advocates for both the sides and perused the Civil Revision application, impugned order of the Execution Court and other papers as filed thereto.

On scrutiny of the record it is found that admittedly the partition suit being Title Suit No. 18 of 2005 was decreed ex parte by  exparte  the  judgment  and  decree  dated   05.02.2007  and thereafter, on knowing about the facts of the exparte judgment and  decree the  defendant  respondent  Nos.  11-12  filed  the Miscellaneous Case No. 19 of 2018 under Order IX, Rule 13 read with section 151 of the Code of Civil Procedure for setting-aside the  ex-parte  judgment  and  decree  and  thereafter  filed  an application for staying all further operation of the execution case No. 06 of 2015 stating that the petitioners were minor at the time of hearing of the title suit and no summons were served upon

them and they were totally ignorant about the partition suit, unless all further operation of the execution case is stayed the petitioners will suffer irreparable loss and injury. The learned Judge of the executing Court after hearing the parties by the impugned order dated  13.08.2018  allowed  the  application  in  the  following language:

“On  perusal  of the record  of original suit no. 18/05 it is found that judgment debtor has filed a misc. case  u/ord-IX  rule  13  for  setting  aside  the  exparte Decree of original suit claiming that they were not informed  the  suit  and  they  were  minor  during  the filing  of  original  suit.  Now,  the  plea  taken  by judgment debtor in the petition u/ord- IX rule 13 is matter of evidence and has to be decided after taking evidences. So, the same has been primarily admitted and accordingly if this execution case is not stayed contradictory  decision  may  hamper  the  right  title interest of both parties.

Hence, this execution case is stayed till deposal of the misc, case no-19/18.”

This order certainly indicates that the learned Joint District Judge, 2nd Court, Sylhet considered all aspects of the matter and

thereafter, recorded the order of stay. The reasonings given by the learned Joint District Judge appear to us to be proper and sound and we, do not find any reason to differ from it.

In a case of this nature justice demands to stay the execution case till disposal of the misc case under Order IX, Rule 13 read with section 151 of the Code of Civil Procedure. Therefore, we find no substance in either of the contentions as raised by the learned  Advocate  for  the  petitioner.  The  decision  cited  is distinguishable on facts.  

However, in the facts and circumstances of the case, we feel it necessary to direct the learned Joint District Judge, 2nd Court, Sylhet before whom the case is pending to hear and dispose of the miscellaneous case expeditiously as early as possible preferably within 3 months from the date of receipt of this judgment and in the meantime further proceedings of the Execution case be stayed.

In the result, the Rule is discharged. There will be no order as to costs.

Let a copy of this judgment be communicated to the Court concerned at once.

Md. Mansur Alam, J:

I agree.