Summary

The heirs of a defendant filed a miscellaneous case under Order IX Rule 13 of the Code of Civil Procedure in the Court of the Assistant Judge, Sadar, Natore, seeking to set aside an ex parte judgment and decree of 10.06.1982 in a 1979 suit. They said summons was never served on their father, defendant No. 1, and that he died in 1985 before the final decree without their being substituted. The trial court rejected the case and the Additional District Judge, Natore affirmed on appeal. On revision, with no one appearing to oppose, the High Court Division noted that the decree was passed ex parte, that the opposite party's own witness admitted the defendant had purchased 4.25 decimals of land and had no objection to a retrial, and that the final decree was admittedly drawn after the defendant's death without substitution. For ends of justice it set aside the orders below and the ex parte decree, restored the suit and directed expeditious disposal.

Issues

1. Q1

   Whether an ex parte decree passed in 1982 should be set aside where summons was allegedly not served on the defendant and the final decree was drawn after his death without substituting his heirs.

Key points

• Where a decree was passed ex parte and the final decree was admittedly drawn after the death of the defendant without substituting his heirs, the ex parte decree should be set aside for ends of justice.
• An admission by the opposite party's witness that the defendant had purchased part of the land and that he had no objection to a retrial supported allowing the Order IX Rule 13 application.
• The 1982 ex parte judgment and decree was set aside and the suit restored to its original file and number, with the petitioners entitled to adduce evidence.
• The petitioners were directed to deposit costs of Tk. 1,000 in the trial court within 30 days, and the trial court was directed to dispose of the suit expeditiously.

Law considered

Code of Civil Procedure, 1908, Order IX Rule 13Code of Civil Procedure, 1908, section 115(1)