Present:-

Mr. Justice Mahmudul Hoque

Civil Revision No. 986 of 2020

Md. Shahjahan Osta and others

... Petitioners -Versus-

Rafique Khalifa and others

...Opposite-parties Mr. Md. Abdul Kader Bhuiyan with

Mr. Sheikh Md. Niamul Islam and

Mr. Muhammad Shaikh Sadi, Advocates

...For the petitioners Mr. Md. Asadur Rahman Khan, Advocate

...For the opposite-party Nos. 1-10, 11 & 13-22.

Heard on 16.05.2024, 20.05.2024 and

Judgment on 26th May, 2024.

In this application under Section 115(4) of the Code of Civil Procedure, by granting leave to revision to the petitioners, Rule was issued calling upon the opposite party Nos. 1-22 to show cause as to why the impugned judgment and order dated 25.11.2019 passed by the learned District Judge, Chandpur in Civil Revision No. 48 of 2018 allowing the same and thereby reversing the judgment and order dated 18.03.2018 passed by the learned Senior Assistant Judge, Sadar, Chandpur in Title Execution Case No. 09 of 1988 rejecting the application under Section 151 of the Code of Civil Procedure for restoration of the execution case dismissed for default on 30.07.2007 should not be set aside and/or pass such other or further order or orders as to this Court may seem fit and proper.

Facts relevant for disposal of this Rule in abridge are that the opposite-parties, as plaintiff, filed Partition Suit No. 171 of 1967 in the Court of 1st Munsif (now Assistant Judge), Chandpur against the present petitioners and others, as defendant, which was decreed in preliminary form by judgment and decree dated 28.06.1969 and 05.07.1969 respectively. Said Preliminary decree was made final on 12.07.1972. Thereafter, one of the defendants, named Kalu filed Title Suit No. 121 of 1972 challenging the decree passed in Partition Suit No. 171 of 1967. One Ayub Ali filed another Partition Suit No. 211 of 1976 which was dismissed by judgment and decree dated 24.12.1977. Appeal No. 76 of 1984 was preferred which was also dismissed for default on 30.12.1985. Thereafter, filed Miscellaneous Case No. 03 of 1986 for re-admission of appeal which was also rejected on 24.07.1986. The decree-holder put the decree in execution by filing Execution Case No. 09 of 1988. In Title Suit No. 121 of 1972 the plaintiff tried to get an order of stay of execution case which was resisted by the decree-holder and finally the suit was dismissed by judgment and decree dated 29.08.1988. Thereafter, preferred Title Appeal No. 149 of 1988 in which proceedings in Execution Case No. 09 of 1988 was stayed and the appeal was remanded to the Court of Assistant Judge, Chandpur, wherein, the suit was renumbered as Title Suit No. 35 of 1993 and dismissed for default on 09.08.1993. They filed an application under Section 151 of the Code of Civil Procedure which was also rejected on 24.08.1993. Thereafter, they filed Miscellaneous Case No. 13 of 1993 for restoration which was allowed and subsequently, Title Suit No. 35 of 1993 was dismissed by judgment and decree dated 01.06.1994. Title Appeal No. 110 of 1994 was filed wherein proceedings of Execution Case No. 09 of 1988 was stayed. Said Title Appeal No. 110 of 1994 was dismissed by judgment and decree dated 11.09.1996. Thereafter, some titleless persons filed Title Suit No. 104 of 1997 which was dismissed on 02.11.2001. They preferred Title Appeal No. 156 of 2001 in which again proceedings in Execution Case No. 09 of 1988 was stayed vide order dated 01.01.2002. Subsequently, said appeal was allowed and sent the Title Suit No. 104 of 1997 on remand to the trial court for fresh trial. Title Suit No. 104 of 1997 while was pending, parties to the proceeding

On the other hand, the decree-holder filed an application before the execution court in Execution Case No. 09 of 1988 for dismissing the same for non-prosecution on the ground that the dispute between the parties has been settled amicably out of court and to that effect both the parties by executing a solehnama got their property amicably partitioned and got