In the Supreme Court of Bangladesh High Court Division

(Civil Revisional Jurisdiction)

Present:

Mr Justice Md. Aminul Islam

Civil Revision No. 5693 of 2002 Abdul Gafur Waqf Estate and another

-----Co-sharer/3rd party in Title Execution Case

---------Petitioners.

-Vs- Mohibunnessa Khatun

------Decree holder in Title Execution Case

---------Opposite-Party

No one appears,

….For the Petitioners No one appears,

….For the Opposite-Party

Hearing concluded on 16.01.2024 Judgment on 17.01.2024.

This Rule was issued calling upon the opposite party to show cause as to why the order No. 100 dated 10.09.2002 passed by the learned Joint District Judge, 2nd Court, Sylhet in Title Execution Case No. 05 of 1991 rejecting an application under section 151 of the Code of Civil Procedure for stay further proceedings of Title Execution Case No. 05 of 1991 should not be set aside and or such other or further order or orders as to this Court may seem fit and proper.

The present opposite party (decree holder) as plaintiffs instituted a Title Suit No. 206 of 1970 before the then Subordinate Judge, 2nd Court, Sylhet for partition without impleading the party in the suit and a fraudulently preliminary decree was obtained on 27.12.1973 and a final decree was drawn up on 20.05.1988 that one of the decree holder, namely Muhibunnessa Khatun i.e, the opposite party filed a Title Execution Case No. 05 of 1991 for recovery of Khas possession regarding her alleged share in the suit schedule land.

On the other hand, the present petitioner is a co-sharer 3rd party in Title Execution Case No. 05 of 1991. The petitioner instituted a Title Suit No. 27 of 1999 before the learned Assistant Judge Court, Sadar Sylhet against the opposite party for a declaration that the judgment and decree passed by the then Subordinate Judge, 2nd Court, Sylhet in Title Suit No. 206 of 1970 to which the petitioner is a co-sharer as per Khatian is out and out illegal, void, malafide, collusive, in-operative and not binding upon the petitioner. On 23.07.2002 after hearing the learned Assistant Judge Court, Sadar, Sylhet setting aside the aforesaid judgment and decree passed by the then subordinate Judge, 2nd Court, Sylhet in Partition Suit No. 206 of 1970.

Thereafter the decree holder as opposite party was sold her share. Then the petitioner another case was filed in pre-emption Miscellaneous Case No. 82 of 2001 for Pre-emption.

The present petitioner on 25.11.2001 filed an application under section 151 of the Code of Civil Procedure in Title Execution Case No. 05 of 1991 for praying stay all further proceedings of Title Execution Case No. 05 of 1991 till disposal of the Title Suit No. 27 of 1999 as well as Pre-emption Miscellaneous Case No. 82 of 2001.

After hearing both the parties the learned Joint District Judge, 2nd Court, Sylhet rejected the aforesaid application under section 151 of the Code of Civil Procedure on 10.09.2002.

Being aggrieved by and dissatisfied with the impugned judgment and order dated 10.09.2002, the petitioner preferred a Civil Revisional application under Section 115(1) of the Code of Civil Procedure before this Court and on 02.11.2002 obtained the instant Rule and with granting ad-interim order of stay. The petitioner lastly on 26.08.2003 the order of stay extended for a period of 6 (six) months. But the petitioner has no any further steps for hearing of this Rule.

No one appears for both the sides. It is now well settled by our Appellate Division decision the case of Safor Uddin vs Fazlul Huq, reported in 49 DLR (AD) 151 that a Revision can be disposed of on merit in the absence of either party or both the parties. It is an old case and in such circumstances of the case is taken up for hearing on merit.

The present petitioner in the Revisional Application and he claimed that the Title Execution Case No. 05 of 1991 filed on the basis of a decree passed in Partition Suit No. 206 of 1970 is out and out illegal, void, malafide, collusive, inoperative and not