High Court Division · Civil Revisional Jurisdiction
Azizul Haque v Abdul Gafur and others
Civil Revision 4894/2022 · Rule discharged · Decided 9 September 2026
The plaintiffs obtained an ex parte preliminary decree in a partition suit before the Assistant Judge, Ashtagram (Bajitpur Chouki), Kishoregonj. The defendant-petitioner's miscellaneous case under Order IX rule 13 of the Code of Civil Procedure to set it aside was dismissed for default. He then applied under section 151 to restore it. The Assistant Judge allowed it on costs of Tk 2,000 and then set aside the ex parte decree and restored the suit. On the plaintiffs' revision, the Additional District Judge, 1st Court, Kishoregonj set those orders aside, holding that an appeal lay against the dismissal and that section 151 was not available. The defendant obtained a Rule under section 115(4). The High Court Division held that, following Abdul Kader Chowdhury v Nurul Islam, section 151 is ordinarily unavailable against an appealable order and may be invoked only in a very rare case. The indolent petitioner showed no special circumstances, and no error on an important question of law was found. The Rule was discharged.
- Whether an application under section 151 of the Code of Civil Procedure is maintainable to set aside an order dismissing for default a miscellaneous case under Order IX rule 13, when an appeal lies under Order XLIII rule 1(d).
- Whether the lower revisional court's decision disclosed an error on an important question of law warranting interference under section 115(4).
- An order dismissing for default a miscellaneous case under Order IX rule 13 is appealable under Order XLIII rule 1(d), so ordinarily no application under section 151 is maintainable to set it aside (Abdul Kader Chowdhury v Nurul Islam, 43 DLR (AD) 128).
- That decision does not shut out section 151 in all circumstances, but the inherent power may be invoked only in a very rare case.
- The defendant-petitioner, who was indolent in pursuing his cause, failed to pay costs in time and failed to appear when the matter was taken up for hearing, made out no special circumstances to justify an application under section 151.
- Revision under section 115(4) lies against a decision of the District Judge or Additional District Judge only where that court committed an error on an important question of law resulting in an erroneous decision occasioning failure of justice (Sheikh Abdul Mazed v Md. Shomrej Ali Mandal, 12 BLC (AD) 173), and none was shown.
since it is an appealable order usually no application under section 151 of CPC is maintainable. However, the apex Court did not shut down the scope for filing an application under section 151 of the Code of Civil Procedure in all circumstances
