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