IN THE SUPREME COURT OF BANGLADESH HIGH COURT DIVISION

(CIVIL REVISIONAL JURISDICTION)

Present:

Mr. Justice S M Kuddus Zaman

CIVIL REVISION NO.2096 OF 2024

In the matter of:

An application under Section 115(1) of the Code of Civil Procedure.

And

Md. Maruf Rana

... Petitioner

-Versus-

Mosammat Sonia Akter

... Opposite party

Mr. S.M. Jahangir Alam with

Mr. Md.Harunur Rashid, Advocates

.... For the petitioner.

Mr. Binoj Krishna Podder with

Ms. Biroja Bala, Advocates

…. For the opposite party.

Heard on 21.08.2022. Judgment on 22.08.2024.

This Rule was issued calling upon the opposite parties to show cause as to why the order No.5 dated 16.04.2024 passed by the learned District Judge, Chattagram in Family Appeal No.16 of 2024 arising out the judgment and order dated 30.10.2023 passed by the learned 1st Additional Senior Assistant Judge and Family Court, Sadar, Chattogram in Family Suit No.332 of 2020 arising out Family Suit No.190 of 2020 now pending in the Court of learned District Judge,

Chattogram for appeal hearing and/or pass such other or further order or orders as to this Court may seem fit and proper.

Facts in short are that the opposite party as plaintiff instituted Family Suit No.190 of 2020 for recovery of her dower and maintenance. On conclusion of trial the learned Judge of the Family Court decreed the suit in full for a total amount of Taka 17,62,000/-.

Being aggrieved by above judgment and decree of the Family Court the defendant preferred above Family Appeal to the District Judge, Chattogram after a delay of 14 days and filed a petition under Section 5 of the Limitation Act for condonation of above delay.

The learned District Judge kept above petition for condonation of delay for hearing alongwith the merit of the appeal and fixed the appeal for hearing on 02.05.2024.

In the meantime the opposite party filed an execution case and in above case a warrant of arrest was issued against the petitioner. The learned District Judge granted bail to the petitioner till 02.05.2024 and directed him to deposit the outstanding decreetal money vide impugned order dated 16.04.2024.

Being aggrieved by and dissatisfied with above order of the learned District Judge above appellant as petitioner moved to this Court and obtained this Rule.

Mr. S.M. Jahangir Alam, learned Advocate for the petitioner submits that the learned District Judge registered the appeal but did not dispose of the same on merit. By preferring above appeal the petitioner has challenged the legality and propriety of the impugned judgment and decree. But the learned District Judge has most illegally directed the petitioner to deposit full decreetal amount of money before disposal of the appeal which is not tenable in law.

On the other hand Mr. Biroja Bala, learned Advocate for the opposite party submits that petitioner was granted bail by the learned District Judge till 02.05.2024. But this petition has been submitted on 07.05.2024 when the petitioner was a fugitive from justice. On above ground alone this petition is liable to be rejected summarily.

I have considered the submissions of the learned Advocates for the respective parties and carefully examined all materials on record.

Undisputedly the opposite party as plaintiff instituted Family Suit No.190 of 2020 in the Family Court of Chattogram and obtained a decree of Taka 17,62,000/- on contest.

The defendant preferred an appeal against above judgment and decree and filed a petition under Section 5 of the Limitation Act, 1908 for condonation of delay of 14 days.

The learned District Judge should have heard the petition under Section 5 of the Limitation Act, 1908 and if above petition was allowed and delay of 14 days was condoned then he should have admitted the appeal. But the learned District Judge most illegally kept above petition for condonation of delay with the record for hearing along with the appeal.