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Preliminary decree is not absolute

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23rd-Dec-2017       
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Appellate Division :
(Civil)
Md Abdul Wahhab Miah J
Nazmun Ara Sultana J
Masum Billah (Md) and another.......Petitions
vs
Md Saidur Rahman and others............Respondents
Judgment
July 3rd, 2017
Code of Civil Procedure (v of o 1908)
Section 144 and
Order IX, Rule 13
Mere passing of a final decree and its execution thereof shall not debar a defendant to file an application under Order IX, Rule 13 of the Code if, in fact, summons were not served upon him and he was affected by the very preliminary decree.
The High Court Division was also oblivious of the provisions of Section 144 of the Code which clearly entitles a party to pray for restoration of possession even if the possession is delivered pursuant a decree passed in a suit. It also failed to consider that the preliminary decree having been set aside, the suit was heard afresh and the parties participated in the hearing and produced evidence and then the suit having been disposed of on merit, there was no bar to pass afresh final decree and, as such, the High Court Division was obliged to dispose of the revision on merit in the context of the judgment and decree impugned before it, but it did not and thereby committed serious error of law in passing the impugned judgment and order and, as such, the same cannot be sustained. .......9 & 10
Venkta Reddy vs Pothi, AIR 1963 (SC) 992 and Sadar uddin vs Jaharlal, AIR 1942 Cal-153 ref.
Abdul Wadud Bhuiya, Senior Advocate instructed by Syed Mahbubar Rahmanb, Advocate-on-Record-For the Petitioners.
Quamrul Hoque Siddique, Advocate instructed by Haridas paul, Advocate-on-Record-For Respondent Nos. 1(a), 4(b), 4(d), 5-6, 7(a)-7(d), 8,9(a), 9(c) -9(d) & 17.
None Represented -Respondent Nos.1(b)-1(g), 2-3, 4(a), 4(c), 4(e), 7(e)-7(h), 9(b), 9(e), 10-16 & 18-244.
Judgment
Md Abdul Wahhab Miah J :  This civil petition for leave to appeal has been filed by 2 (two) of the defendants, namely, Md Masum Billah, son of late Yakub Ali and Abul Hashem, son of Munshi Abdul Gani (number of the defendants are not available from the record) against the judgment and order dated the 12th day of January, 2016 passed by a Single Bench of the High Court Division in Civil Revision No.6086 of 2002 making the Rule absolute.
2. Facts necessary to dispose this petition are that predecessor-interest of respondent Nos, l(a)-1(g), respondent Nos. 2 and 3, predecessor-in-interest of respondent. Nos.4(a)-4(e), respondent Nos. 5 and 6, predecessor-in-interest of respondent Nos. 7(a)-7(h), respondents No.8, predecessor-in-interest of respondent Nos.9(a)9(e) and respondent Nos. 10-18 herein as the plaintiffs filed Title Suit No . .164 of 1973 in the Court of Subordinate Judge, Court No:2, Barisal for partition of the suit land Subsequently, the suit having been transferred to the Court of Assistant Judge, Banaripara, BarisaI was renumbered as Title Suit No. 169, of 1984.
3. The suit was decreed on 30-6-1987 in preliminary form against the contesting defendants as well as the other non-contesting defendants. Against the said decree, defendant No. 176 filed an application under Order IX, rule 13 of the Code of Civil Procedure for setting aside the said decree. The application was registered as Miscellaneous Case No.4) of 1989. This miscellaneous case was allowed by the learned Assistant Judge by his order dated 18-1-1995 in the following terms:
অতএব,
হুমুক হইল যে,
অত্র মোকদ্দমাটি তরপছানীদের বিরুদ্ধে একতরফ সূত্রে ১,০০০ টাকা খরচায় মঞ্জুর করা হইল। বিগত ইং ৩০-৬-৮৭ তারিখের প্রচারিত ডিক্রী রদ ও রহিতান্তে মূল মোকদ্দমা উহার পূর্বের নম্বরে ও ফাইলে পূনর্বহাল করা হইল।”
4. Thus, it is clear that 'the decree passed in  the suit was set aside as a whole. Therefore, the decree passed in the suit. on 30-8-1987 became non-existent. It further appears that after the suit was restored to its original file and number, the same was contested by defendant Nos. 3 and 15 by filing written statement and on conclusion of trial, the learned Senior Assistant Judge by his judgment and decree dated 28-5-1998 dismissed the suit. Against the judgment and decree of the learned Senior Assistant Judge, the plaintiffs filed Title Appeal No: 130 of 1998 before the District Judge, Barisal. The learned Additional District Judge, 1st Court, Barisal having heard the appeal by his judgment and decree dated 23-5-2002 dismissed the appeal and thus affirmed the judgment and decree of the learned Assistant Judge. Being aggrieved by and dissatisfied with the judgment and decree of the learned Additional District Judge, the plaintiffs filed the above mentioned civil revision before the High Court Division. A Single Bench by the impugned judgment and order made the Rule absolute and set aside the judgment and decree complained of; hence this petition for leave to appeal.
5. Heard Mr Abdul Wadud Bhuiya, learned Counsel for the. petitioners and Mr Quamrul Hoque Siddique, learned Counsel who entered caveat on behalf of respondent Nos. l(a), 4(b), 4(d), 5-6, 7(a)- 7(d), 8, 9(a), 9(c)-9(d) and 178.
6. From the revision application, it is prima facie clear that the judgment and decree impugned therein was the judgment and decree of the Appellate Court passed in Title Appeal No. 130 of 1998 affirming those dated 28-5-1998 passed by the learned Assistant Judge, Banaripara in the suit being Title Suit No. 169 of 1984 after the same had been restored to its original file and number. But the High Court Division without considering the legal flaws in the judgment of the Courts below passed in the suit and in the appeal respectively, devoted its whole energy on the legality of the, order passed in Miscellaneous Case No.43 of 1989 setting aside the decree passed on 30-6-1987; as if it were a revision preferred against the order allowing the said miscellaneous case. We consider it better to quote the entire findings of the High Court Division which is as under:
"I have considered the question raised that whether, after final decree having been executed on satisfaction, the decree of a partition suit can be set aside by laying application under Order IX, rule 13 of the Code of Civil Procedure. This suit was for partition in which it is to be settled (sic) whether a party has saham or share of land. It appears out of 202 defendants, at the instance of single defendant, entire decree as been set aside. Partition suit is different from other suits. In partition suit share of land was allowed to plaintiff or defendant as per their individual saham.
In setting aside any exparte decree, the applicant must disclose (sic) the impugned exparte decree how he is effected ie whether (sic) his share of land crept up from his saham has been allotted to other. Omnibus statement for setting aside exparte decree does not hold good. It can be set aside in respect of saham of which applicant defendant is entitled. It appears that defendant No. 176 stated that entire judgment was obtained by practising fraud. This is not correct as when other defendants appeared one cannot say that entire judgment was obtained by practising fraud. It is to be borne in mind that defendant Nos. 170-2002 were impleaded by order dated 19-2-1976.
Now, the question put forward by the learned Advocate for the petitioner that if decree having been executed to the satisfaction of all the appeared defendants whether it can be set aside under Order IX rule 13 of the code of civil procedure.
In the case of Venkata Reddy vs Pothi, AIR 1963 (SC) 992 it is held where no appeal has been filed against the preliminary decree, the rights determined therein become final and conclusive and cannot be questioned in the final decree.
In the case of Sadar uddin vs Jaharlal, AIR 1942 Cal-153, it is held when no appeal is preferred against the final decree and only the preliminary decree is appealed against, but a copy of the final decree is placed on record of the appeal, it is the duty' of the appellate court in dealing with the appeal to give necessary' and consequential directions regarding final decree.     
It appears that suit was decreed and decree was satisfied by giving possession of the respective parties, final decree was drawn and possession of the parties have been delivered by advocate commissioner, in such situation, an application under Order IX Rule 13 of the Code of Civil Procedure is incompetent, an appeal can be taken. After final decree being satisfied by giving possession to individual saham holder it ended finally, in such a situation application under order IX Rule 13 of the Code of Civil Procedure is totally incompetent and is entertaining the application courts below totally suffer from corum nonjudice. I find substance in this rule."
7. In the context, it is necessary to bring on record a very broad admitted fact that the plaintiffs did not move the higher Court against the order allowing the miscellaneous case, rather they very much participated in the, peremptory hearing of the suit and produced evidence in support of their case after restoration to its file arid number and then they having lost in the suit, filed appeal against the decree of the trial Court. Since the plaintiffs accepted the order passed in the miscellaneous case and participated in the hearing of the suit, they could not challenge the propriety or the, correctness of the order passed in the miscellaneous case in any manner whatsoever in a proceeding which arose out of the decree passed in the suit. Unfortunately, the High Court Division failed to comprehend this simple factual and legal aspect of the case. In the context we consider it necessary to refer to the finding of the learned Senior Assistant Judge in allowing the miscellaneous case which reads as follows;
“ধার্য্য তাং সরকারী ছুটি থাকায় অদ্য নথি মজহর পক্ষের বিগত ইং ১৪-১১-৯৫ তারিখের একতরফা জবান-বন্দীর আলোকে আদেশের জন্য পেশ করা হয়।
ছানীর দরখাস্ত ও নথি পর্যালোচনা করিয়া দেখিলাম। অত্র মোকদ্দমায় বিবাদী পক্ষের প্রতি মূল মোকদ্দমার সমন জারীর বিবরণ সন্তোষজনক নহে বিধায় অত্র মোকদ্দমাটি মঞ্জুর যোগ্য”
8. From the above, it is clear that the summons of the suit was not served upon defendant No. 176 who filed the miscellaneous case for setting aside the decree passed in the suit and the trial Court rightly allowed the same.
9. From the judgment of the High Court Division, it is apparent that it failed to consider the very fundamental fact that the decree which was passed earlier in the suit did not exist, the moment the same was set aside, in the miscellaneous case. The High Court Division also failed to consider that mere passing of a final decree and its execution thereof shall not debar a defendant to file an application under Order IX, Rule 13 of the Code if, in fact, summons were not served upon him and he was affected by the very preliminary decree. The High Court Division was also wrong in relying upon the principle of law laid down in the cases of' Ven Kata' Reddy (Supra) and Sadaruddin ($upra) in passing the impugned judgment and order, as the facts and circumstances of the instant case were completely different and distinct from those cases.
10. The High Court Division was also oblivious of the provisions of Section 144 of the Code which clearly entitles a party to pray for restoration of possession even if the possession is delivered pursuant to a decree passed in a suit.
It also failed to consider that the preliminary decree having been set aside, the suit was heard afresh and the parties participated in the hearing and produced evidence and then the suit having been disposed of on merit, there was no bar to pass afresh final decree and, as such, the High Court Division was obliged to dispose of the revision on merit in the context of the judgment and decree impugned before it. but it did not and thereby committed serious error of law in passing the impugned judgment and order and, as such, the same cannot be sustained.
11. In view of the above, we find no other alternative but to send the revision back to the High Court Division for hearing afresh and for disposal in accordance with law on the basis of the evidence on record. Accordingly, this petition is disposed of in the following terms:
The impugned judgment and order of the High Court Division is set aside. The revision is sent back to the High Court Division for hearing afresh and for disposal on merit in accordance with law considering the evidence.
If so advised, the parties may mention the revision before the competent Bench for early hearing and, if mentioned, the concerned Bench shall hear the same on priority basis.

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