Order 11 Rule 2(2), Order II Rule 17
The amendment may be allowed at any stage of the proceeding before or after the trial or even after the judgment or on appeal if justice require and no blame would be attached to the party, the materiality of the amendment should always be looked at so as to decide the real controversy between the parties allowing amendment of the pleadings......(17). Pragati General Insurance Company Ltd. vs Md. Siddique Ali Mondal (Mohammad Fazlul Karim J)(Civil) 2ADC 926
Order 11, VII, Rule 10, 2
The Artha Rin Adalat Act, 1990 to be a special procedural law rather than a substantive law affecting the rights of the parties. It was submitted that where par- ties have agreed that a foreign law governs a dispute, capacity to sue is governed either by the law of the domicile of the plaintiff, which in this case is Washington D.C., U.S.A., or the governing law of the agreement, which in! this is alleged to be English law, and not the law of the forum where the suit is brought to resolve the dispute. Mustaque Alam Chowdhury vs. The 1 Court of Joint District and 2nd Artha Rin Adalat (Mohammad Fazlul Karim Civil) 4 ADC 906
Order XI Rules 8 and 11
If the person interrogated omit to answer, the Court has the power to pass an order compelling the person interrogated to answer them, hence the provision of answer interrogatories within 10 days as stipulated in Rule 8 cannot be said to be a mandatory provision of law. Sree Bisheswar Bhattacharjee Vs Suntimoy Bhattacharjee & ors., 19 BLD (HCD) 37.
Order XI Rule 11
Rule 11 has given a power to the person serving interrogatories to apply to the Court for an order requiring the party upon whom interrogatory has been served to answer interrogatories. Md. Habibur Rahman Vs Deputy Commissioner, Patuakhali and others, 19 BLD (HCD) 34.
Order XI Rules 21 and 11
The provision of Rule 21 applies when the party interrogated fails to comply with an order passed by the Court under Rule 11, but in the instant case the party interrogated has not failed to comply with any order of the Court. Md. Habibur Rahman Vs Deputy Commissioner, Patuakhali and others, 19 BLD (HCD) 34.
Ref: AIR 1967 (SC) 297; PLD 1957 (Dacca) 161;, 2 BLC(AD)(1997)181; PLD 1935 (Dacca) 42; 1988 BLD 330; 45 DLR (AD) (1993)178—Cited.
Order XI, Rule 21
When the defendants fail to prove that the trial Court’s order absolving the plaintiffs liability of defect of parties owing to their own failure to answer to the plaintiffs interrogatories on this point was obtained collusively, the plea of defect of parties is not available to them. Md. Hafizuddin Mondal and others Vs. Sree Dhirendara Nath Singh and others, 14 BLD (AD) 132.
Code of Civil Procedure [V of 1908]
Order 11, rule 21 read with
Artha Rin Adalat Ain [VIII of 2003]
Section 57-There is no scope to reject the plaint of the suit under Order XI, rule 21 of the Code. Plaint of a suit may be rejected on any of the grounds as provided in Order VII, rule 11 of the Code.
The High Court Division further held that the application under Order XI, rule 21 of the Code (Annexure-C to the writ petition), it appears that in the application, it is stated "আর্জি খারিজ করার আবেদন" with dentical prayer. But there is no scope to reject the plaint of the suit under Order XI. rule 21 of the Code. Plaint of a suit may be rejected on any of the grounds as provided in Order VII, rule 11 of the Code. But none of those grounds are mentioned in the application. In view of the above, there was no scope to allow the application under Order XI, rule 21 of the Code read with section 57 of the Ain and the learned Judge of the Adalat lawfully rejected the said application. Thus, we find no merit in the submissions of Ms. Afsana Begum, the learned Advocate for the petitioner and we find merit and force in the submissions of Ms. Hosneara Begum, the learned Advocate for the Bank. In view of the discussions made in the foregoing paragraphs, vis-a-vis the law, the High Court Division finds no legal infirmity in the impugned order passed by the learned Judge of the Adalat rejecting the petitioner's application filed under Order XI, rule 21 of the Code read with section 57 of the Ain, rather it is well founded in law. In such view of the matter, the High Court Division finds no merit in the rule. Accordingly, the Rule is discharged with a cost of Tk. 20,000/- to be paid by the petitioner to the Bank within fifteen days from date. Mahbub Minhaj-Vs. Artha Rin Adalat 3rd Court. Dhaka (Spl. Original) 19 ALR (HCD) 45-47
Order XI Rule 21
When no order is passed by the Trial Court for supplying interrogatories, the question of allowing the application under Order 11, Rule 21 of the Code of Civil Procedure cannot be maintained. Md. Ansar Ali Vs. Md. Yeasin Mea and others, 13 BLD (HCD) 525.
Order XI Rule 1
Discovery by interrogatories—Discretion of the Court
It provides that in any suit the plaintiff or defendant by leave of the Court may within ten days from the date of framing of issues, deliver interrogatories in writing for the examination of the opposite parties or any one or more of such parties.
In this case the petitioners filed written statement on 21.3.1996. Shortly before the date of peremptory hearing filed an application for leave to deliver interrogatories under Order XI Rule 1 read with section 151 C.P.C. The learned trial Court by the impugned order rejected the prayer of the defendants upon the view that the plaintiff was prepared with his papers, and the defendants having opportunity to peruse them upon filing of the same and the suit having been set down for peremptory hearing, leave to deliver interrogatories could not be considered at such belated stage.
Interrogatories may be delivered only with the leave of the court and it is in the discretion of the Court to grant or not to grant leave. In the facts of the case, the learned trial Court rightly exercised his judicial discretion in refusing to rant leave. MIs. Moon Garments industries and ors. Vs. Janata Bank, Foreign Exchange Corporate Branch and ors, 18 BLD (AD) 7.
Order XIV Rule 2 and Order XV Rule 3
Issues of law and fact and parties at issue
When the applicant did not press for determining the issue of maintainability of the suit first after the framing of issues and waited leisurely and made a prayer for such determination on the date fixed for peremptory hearing it follows that it was aimed at frustrating the act of Order XIV Rule 2 and Order XV Rule 3 of the Code meant for avoiding protracted litigation and unnecessary expenditure. The learned trial court rightly rejected the prayer of the petitioner for avoiding a peacemeal disposal of the suit. Hatem Ali and Ors. Vs. Ramjan Ali, 16 BLD (HCD) 372.
Ref: A.I.R. 1965 (Andhra Pradesh), 12; 30 DLR (SC)30;—Cited.
Order XIV Rule 1
Framing of Issues
Failure to frame a particular issue or issues does not affect the decision of the Court if the points involved in the suit are substantially covered by the evidence adduced by the parties and duly considered by the Court. Under such circumstances it cannot be held that the petitioner has been prejudiced by such omission. There is no necessity for remanding a case on such a ground. Hachina Begum Vs. Mosammat Mahfuza Akhter 16 BLD (HCD) 374.
Code of Civil Procedure [V of 1908]
Order 14 rule 1 & 2
Court of original jurisdiction at time of holding trial is under obligat to frame proper issues of law and of fa to decide the controversy between parties and it further appears that un rule 2 of Order XIV of the Code of C Procedure, the Court is under furti obligation to decide the issues relating law at first, before deciding the iss relating to the question of facts.
The High Court Division held learned Judge of the trial Court on getti back the suit on remand could not fran the issue on plaintiff's title and thereb failed to decide the issue of title as per th observation and direction of Appellate Court below; trial Court also decided the issue of maintainability of the suit in an evasive manner and without noticing the observation of appellate Court as well as mandate of the provision of Order XIV rule 1 & 2 of the Code of Civil Procedure and this failure on the part of trial Court to comply with the direction of Court of appeal below in deciding the issue of maintainability at first, which is the legal mandate of rule 2 of Order XIV of the Code of Civil Procedure also, made the judgment erroneous, more over failure or omission to frame issues in accordance with the provision of Order XIV, rule 1 of the Code of Civil Procedure, which affected trial of the suit materially in deciding whole controversy between the parties, is also an error of law, committed by trial Court. Md. Motiur Rahman and others Vs. Deputy Commissioner, Narsingdi and others. (Civil) 21 ALR (HCD) 44-48
Code of Civil Procedure [V of 1908] sub-rules (3) and (4) of rule I of Order 14
The law in clear terms curtailed the power of the Court in granting adjournment prayers of the parties to the suit. If the Court, before or after peremptory hearing of a suit, allows adjournment to a party with costs with a direction to deposit the same within some specified time in exercising power under sub-rules (3) and (4) and the plaintiff fails to comply with such order, the Court shall have no option but to dismiss the suit and in case of defendant, dispose of the suit ex-parte.
The High Court Division held that in the instant case, it appears that the suit was fixed for peremptory hearing on 27.04.2005 and on that date on the prayer of the plaintiff, the learned Judge of the trial Court adjourned the hearing with a cost of Tk. 200/- fixing on 07.06.2005 for peremptory hearing and on that date the plaintiff prayed for time without depositing the said cost and the trial Court again adjourned the hearing with cost of Tk. 200/- and fixed the next date on 26.07.2005 for peremptory hearing. On 26.07.2005, the plaintiff was examined as P.W.1 and thereafter, another date was fixed. The certified copies of the order dated 26.7.2005 and order of the next date have not been annexed to the revisional. application. The learned Advocate for the petitioner could not also inform me as to what happened on that two dates. However, the next date was fixed on 11.09.2005 for further hearing. On that date the plaintiff prayed for adjournment and the trial Court, after perusing the records, dismissed the suit for default. On perusal of the impugned judgment of the appellate Court, it appears that the appellate Court upon proper appreciation of factual and legal aspect of the case also found no illegality in the judgment of the trial Court and accordingly, arrived at correct decision for which no interference is called for by this Court. In view of the above discussions, the High Court Division finds no merit in the rule. In the result, the rule is discharged. Mahfuzar Rahman Vs. Moshiur Rahman and another (Civil) 18 ALR (HCD) 339-342
Order XIV, Rule 2
The provision of Rule 2 of Order 14 C.P C. is mandatory and the Court is under mandate of law.
To decide the issues of law where an application has been filed by a party for deciding a preliminary point on law. Manjur Ahmed Chowdhury and another Vs. Gulbanu and others, 14 BLD (HCD) 1.
Order XIV Rule 2
Where issues of law shall be determined first?
It requires that the Court shall determine issues of law first before settlement of issues of fact where the case or any part of it may be disposed of on preliminary issues of law only.
The trial Court found that since issues of law and fact have already been framed and the date of peremptory hearing of the suit has been fixed, the petitioner’s application under Section 14 of the Limitation Act to decide the question of limitation at that stage merits no consideration. In the facts of the case, no illegality has been committed by the trial Court. Hanif Uddin 5heikh Vs. Birendra Nath Das 16 BLD (HCD) 388.
Code of Civil Procedure (V of 1908)
Order XIV, rule 2
A case where summons and written statements are required to be issued and submitted as because the plaint cannot be rejected on the very averments of the same under Order VII rule 11 of the Code and/or section 151 of the Code, and in such cases when issues are framed after filing of written statements, the suit should be disposed of by resolving the issue of maintainability, or issue of law only, first if such step resolves the entire suit or part of it. [73 DLR 554]
Order XIV Rule 1
Framing of issues
Order XIV Rule 1 of the Code casts a definite responsibility upon the trial Court to frame issues upon the material assertions by one party and denied by the other and this can be done at any stage of the suit if found necessary. But it is necessary that the contending parties are afforded adequate opportunity to contest the issue. Mohammad Abdul Jalil Miah Vs Nirupama Ritchil and others, 17 BLD (AD) 63.
Order XVI Rule 14
The Court must express and record that it is necessary to examine any person other than a party to the suit. After the Court has found it necessary to examine such a person, the Court of its own motion will cause such a person to be summoned as witness. Char Chandpur High School Vs. Kazi Nurul Alam and others, 13 BLD (HCD) 245.
Order XVI Rule 1
Summoning and attendance of witnesses
Rule I of Order XVI of the Code of Civil Procedure provides that at any time after the institution of the suit the parties may, on an application to the Court, obtain summons to persons whose attendance is required, either to give evidence or to produce documents. But this privilege of a litigant to take out summons to witnesses is subject to the control and satisfaction of the Court. If the prayer appears to be wanting in bonafides or it is considered as an abuse of the process of the Court, it will be lawful for the Court to refuse such a prayer. Mansur Ali Sikder Vs Kanailal Benarjee and others, 17 BLD (AD) 326.
Order XIV Rule 1
Framing of issues
Mere omissions to frame an issue is not fatal to the trail of a suit. Omission to frame issues is an irregularity which may or may not affect the disposal of a suit on merits. If such omission has affected the disposal of the case on merits it will be a ground for remanding the case. But if parties have not been prejudiced by the omission, the decision will not be set aside or the case remanded for a new trial. Daulat Ahmed Vs. Md. Mosharraf Hossain, 17 BLD (HCD) 607.
Ref: PLD 1969 Pesh 241; PLD 1969 Pesh 5;—Cited.
Order XIV Rule 2
Issues of law and fact
It provides that where issues both of law and fact arise in the same suit and the Court is of the opinion that the case or any part thereof may be disposed of on the issues of law only, it shall try those issues first. The trial Court was thus right in deciding the question of maintainability of the suit as the primary issue. Osman Gani Talukder alias Sujat Ali Talukder Vs. Md. Osman Ali Mondal, 16 BLD (HCD) 165
Order XIV
Framing and determination of issues
When the genuineness or otherwise of the bainapatra is not a relevant issue in the suit, the suit being for mere declarations that the impugned decree was fraudulent and collusive and as such not binding upon the plaintiff, it is not at all necessary for the Court to frame and determine an irrelevant issue. Since the determination of the genuineness or otherwise of the bainapatra is beyond the scope of the suit, to learned Munsif rightly rejected the prayer of the plaintiff to frame an issue on it. Hasan Sikder Vs. Jahurul Haque Molla and others, 15 BLD (HCD) 659.
Order XVI, rules 14(3)
The direction to submit stamp and the drawing and signing of the final decree are mere ministerial act to be performed by the court staff and that cannot have any bearing to make the decree final. The provisions of sub-rule (3) of rule 14 of Order XXVI, of the Code had made it obligatory upon the court confirms or varied the report. [73 DLR 544]
Order XVIII, Rule 12
The Court is not permitted to make remark about the demeanour of a witness after examination of the witness and after the deposition was read over and signed, but permits a Judge make such remark in the body of the Judgment under Or. 18, R. 12. C.P.C.
Barkat Ali Vs. Messers. Commerce Bank Ltd. at pre-sent Agrani Bank, local Office, Sir lqbal Road, Khulna and others, 13 BLD (HCD) 530.
Ref: Pothan Chandy Vs. Ouseph Kochonsepth, A.LR. 1951 TriKochin, 12 -Cited.
Order XVIII, Rules: 1 and 2(1)- The defendant did not admit the case of the plaintiff and filed written statement denying the plaintiff's claim that the suit property was an abandoned property, so it was the plaintiff who had the right to begin the hearing of the suit as per provision of rule 1 of order XVIII of the Code. Rule 2(1) of the Code has clearly provided that on the day fixed for hearing of the suit the party having the right to begin shall state his case and produce evidence in support of the issues which he is bound to prove, the other party shall then state his cause and produce his evidence (if any) and may then address the Court generally on the whole case. Therefore, there was no scope on the part of the plaintiff to avoid examination of witness and state the facts of the plaint at the hearing of the suit. Government of Bangladesh -VS- Md. Mizanur Rahman, [4 LM (AD) 138]
Order XVIII Rule 17- Recalling witnesses- It is also an established principle and a requirement of law that a party to the suit may be given the opportunity to call witnesses and produce any evidence at any time during the trial. The trial does not finish until pronouncement of judgement. ... Mortuz Ali Khalifa =VS= Jobeda @ Kalu Bibi, [8 LM (AD) 38]
Order XVIII Rule 17
Evidence Act, 1872, Section—138
Discretion cannot be extended beyond the law of evidence to allow a party to the suit, who did not cross-examine a witness in time and without any excuse, to avail his right to cross-examine the witness, the whole purpose or object for such discretion is to advance justice but not to cause injustice.
Abdul Munim and others Vs Mosstt Hazera Zaman and others, 21 BLD(HCD)338
Ref: Morsalin and ors. Vs. Nurul Huda and ors. 48DLR593; Abu Bakkar and another Vs. Md. Akbar Ali Biswas. 45 DLR62; Nurul Islam Vs. Md. Abdur Rashid. 27 DLR (AD) 32; AIR 1947 Born 156—Cited.
Order XVIII rule 17
The Court can re-call a witness even while considering the judgment, if any ambiguity or omission is noticed. The power can be exercised suo motu and also at the instance of a party.
Md. Hanif Ali v. Hajera Khatun and others, 22 BLD (HCD) 21 7.
Order XVIII Rule 17
Court’s power to recall and examine witnesses.
It is well-settled that under Order XVIII Rule 17 CPC the Court has ample power to recall at any stage a witness who has earlier been examined, cross-examined and discharged. The powers under this Rule are very wide and the court can recall a witness even while considering its judgment, if any ambiguity or omission is noticed. This power can be exercised at the instance of a party or even suo motu.
Power conferred by Order XVIII Rule 17 C.P.C. is an enabling power and it has conferred very wide powers in the Court for effective and complete adjudication of disputes in doing justice in a given case.
Md. Morsalin and others. Vs. Nurul Huda and others, 16 BLD (HCD) 15.
Ref: 37 DLR (AD). 32; A.I.R. 1923 (PC) 95—Cited.
Order XVIII Rule 16 and Order 26 Rule—I
Under Order 18 Rule 16 C. P. C. the Court has ample jurisdiction to examine any witness at any stage of the proceeding if it is satisfied that such examination is expedient 1w the interest of justice.
Order 26 Rule 1 C. P. C. authorises the court to issue a commission for the examination of witnesses on specified grounds.
Khandaker Moulana Golam Akbar and others Vs. Amir Hamja and others, 15 BLD(HCD)91
Order XX, Rule 4(2)
The finding of a learned Judge before considering the oral evidence on record is wholly unjustified. A learned Judge is called upon to consider the evidence. Thereafter, he is to formulate his finding. Where the evidence is not considered in its true perspective, the Judgment and decree passed by the Courts below are liable to be set aside.
Md. Mafizuddin Vs. Sree Benu Pramanik and others, 13 BLD(HCD)523
Order XX Rule 4
Substitution of legal representative
Any of the plaintiff on record or legal representative of the deceased plaintiff may file an application for substitution of the heirs of any of the deceased plaintiff.
When a plaintiff in a case dies ordinarily all his or her legal representatives should be brought upon the record as plaintiffs unless some of them decide to be impeaded as defendants. In the instant case although the conercend heirs, who are left out earlier, did not take any steps for impleading themselves but the learned trial court on the application of other heirs of the deceased plaintiff rightly impleaded them as plaintiffs in the suit.
Firoza Khanam and others Vs Dr. Golam Safiruddin and others, 20 BLD (HCD) 69.
Ref: PLD1956(Pes)113; AIR 1939 (Patna) 225; Bangladesh Vs. Abul Kaiser Chowdhury and ors, 5 BLD(1985) (AD)273—relied.
Order XX Rule 12
A suit for mesne profits instituted by the plaintiffs separately during the pendency of their previous suit for possession is not maintainable in law. The provisions of Order 20 Rule 12 C. P. C. do not apply to a suit for manse profits simpliciter as the contending parties in such a suit are required to adduce. evidence, for and against, as to the quantum of claim and the court is required to determine the issues on the basis of the evidence on record. Khaled Hamidul Huq and others Vs. Amina Khatun and others, 15 BLD (HCD) 322.
Ref. A. 1. R. 1975 (Cal) 12; 66 C. W. N. 692—Cited.
Order XX Rule I
Judgment when pronounced
Order XX Rule 1 of the Code of Civil Procedure provides that when the judgment is to be pronounced on some future day, the Court shall fix a day for that purpose of which due notice shall be given to the parties or to their Advocates.
In the present case after hearing the arguments of the contending parties on 12.1.1984 the date for judgment was fixed on 22.1.1984 but it did not appear in the ‘daily cause list of the Court for 22.1.1984 and again it appeared in the ‘daily cause list’ of 6.2.1984. The judgment was delivered on 25.1.1984 without entering the same in the daily cause list for the day. There being nothing on record to show that the plaintiff or his lawyer had otherwise any information or knowledge that the judgment would be delivered on 22.1.84, the learned Courts below were wrong in not considering this vital fact in passing the impugned judgments. The appeal is allowed and the judgment of the trial court is maintained. Md. Samon Afiah Vs. Falani Be gum and others, 15 BLD (AD) 251.
Code of Civil Procedure [V of 1908]
Order 20 Rule 4(2) read with Order XL Rule 27
The procedure of pronouncement of judgment has been details in Rule 4(2) of Order XX of the Code of Civil Procedure that judgment and other courts shall contain and consise statement of the case, the points for determination, the decision thereon and the reasons for such decision. Rule 5 provides that in suits in which issues have been framed, the court shall state its finding or deci sion, with the reasons therefore, upon each separate issue.
It appears to the High Court Division that though it is an ex-parte judgment but as per provision of Order XX Rule 4 and 5 the trial Court ought to have disposed of the suit considering and following the aforesaid provision of law. The procedure of pronouncement of judgment has been details in Rule 4(2) of Order XX of the Code of Civil Procedure that judgment and other courts shall contain and consise statement of the case, the points for letennination, the decision thereon and the casons for such decision. Rule 5 provides hat in suits in which issues have been ramed, the court shall state its finding or decision, with the reasons therefore, upon cach separate issue. But on perusal of the udgment the order No. 31 dated 12.09.2011 the trial court though passed the ex-parte decree but did not at all consider or follow the said procedure at stated in the Order XX of the Code of Civil Procedure. The court did not state the case of the plaintiff and also did not consider or states for determination of the case. Even the court though considered some deeds by which the plaintiffs had purchased the land from the appropriate authority of the suit property but ultimately dismissed the suit. The learned Advocate filed application for taking the documents of title as additional evidence provided under Order XL Rule 27 and in such circumstance of the facts since the trial court passed the impugned judgment without following the procedure provided under Order XX of the Code of Civil Procedure and since the plaintiffs has filed application for taking additional evidence of the documents which have been produced before the Court at the time of deposition by the P.W-1 but which ware not exhibited. In such circumstance of the facts it is the High Court Division view that it is better to send back the case on remand to the trial court to dispose of the suit afresh considering the findings of the court and the application filed by the appellant under Order XLI Rule 27 for taking additional evidence giving scope to the parties to prove their cases. In the result, the appeal is allowed. Md. Rafiqul Islam and others Vs. Chairman Narayangonj Pouroshava and others (Civil) 20 ALR (HCD) 20-23
Order XX Rule 5
Court to decide each separate issue framed A plaint cannot be rejected giving a decision on a particular issue when other issues already been framed on the pleadings of the contending parties. The trial Court was perfectly justitified in holding that the question of maintainability of the suit on the ground of res judicata can. be decided at the trial on taking evidence. Under such circumstances the plaint cannot be rejected.
Jugal Kishore Sarker Vs. Md. Sohrab Ali Sk, 16 BLD (HCD) 549.
Ref: 40 DLR 236; 14 BLD 1— Cited.
Code of Civil Procedure [V of 1908]
Order 20 Rule 18(1)(2)-Whether it is incumbent upon the Court to deal with the title of the parties in a suit for partition?
Since in a partition suit, a person approaches the Civil Court with grievance of not being able to enjoy his/her property absolutely independently or peacefully and, in responding to the plaintiff's case, if the defendant questions the very title of the plaintiff, in that scenario, it is incumben upon the Court to assess and determin the plaintiff's title, right and interest the suit land. Even, if the plaintiff is nou opposed/encountered by the defendant as to title on the suit land, it would be a prudent performance for a Court to examine the source/basis of the plaintiff's as well as defendant's ownerships in the suit land and thereby determine the title of the plaintiff and the defendant/s. Because, it would not only be useful and helpful for the Court- appointed Commissioner or the Collector to proceed further with the suit towards execution of the decree, but it would also help to curb multiplicity of suits.
In a suit for partition or separation of a share, irrespective the defendant's challenge as to the plaintiff's share in the suit land, the Court, at the first stage, would decide whether the plaintiff has a share in the suit property and whether s/he is entitled to division and separate possession. The decision on these two issues is exercise of a judicial function and results in first stage decision termed as 'decree' under Order 20 Rule 18(1) of the CPC and termed as 'preliminary decree' under Order 20 Rule 18(2) of the CPC. The con- sequential division/separation by metes and bounds, considered to be a ministerial or administrative act requiring the physical inspection, measurements, calculations and considering various permutations/ combinations/ alternatives of division is referred to the Collector under Order 20, Rule 18(1) of the CPC and is the subject matter of the final decree under Order 20, Rule 18(2) of the CPC. Md. Akram Ali and others Vs Khasru Miah and others (Civil) 19 ALR (HCD) 124-148
Order XXI Rule 16
In a pending suit, the provision of the aforesaid Order is applicable. The words “during the pendency of the suit” clearly mean before a final decree or order has been passed or made in the suit.
The only question to be decided on an application under Order 21, Rule 16 of the Code is whether the application is the person entitled to execute the decree. Manik Chand Bibi alias Rezian Nahar and another Vs. Abdul Mutakabbir Chowdhury, 13 BLD (AD) 75.
Order XXI Rule 16
When the petitioner himself consented to the execution of the decree by making an endorsement of objection he is debarred from raising the question of service of notice subsequently. Md Selim Vs Amir Hossain and others, 21 BLD (AD) 133.
Order XXI Rule 19
An application under Order XXI Rule 19 is not maintainable by a judgment-debtor for F legal set-off. On general principles and in exercise of its inherent power and executing Court can entertain and give effect to a claim to set-off, even in cases which do not come strictly under Order XXI Rule 19 of the Code. An equitable set-off can be claimed in a case where cross demands arise out of the same transaction or where they are so connected in nature or circumstances that it would be inequitable to allow one party to execute his decree depriving the other party to separate proceedings. No party as of right can claim such set-off, which may be granted by a Court in its discretion to be exercised judicially.
Shankar Lal Das v. Janata Bank and others, 22 BLD(HCD) 54
Ref: Bank of Dacca Ltd. V. Gour Gopal Saha AIR 1936 Cal. 409; B. Sheshaiah v. Veerabhadrayya AIR 1972 AP 134.
Order XXI Rule 22
The executing court acted beyond jurisdiction in issuing the notices upon the judgment debtors in as much as the Court is not required to issue such notice as the decree execution case has been filed within three months from the date of the decree.
Haji Jahanara Begum and others Vs Managing Director, Rupali Bank and others, 20 BLD (HCD) 455.
Ref: Abbasuddin Chowdhury Vs. Chandra Mohan Chowdhury, 18 DLR Page 535—Cited.
Order XXI Rule 22
Order 21 Rule 22 of the Code provides that if the execution case is filed after two years from the date of the decree, a show cause notice ought to be issued upon the judgment-debtor. In the instant case the decree was drawn up and signed on 15.9.1999 and the execution case was filed on 29.11.1999. Since the execution ease was filed within three months from the date of passing the decree issuance of notices upon the judgment-debtor was illegal and without jurisdiction. Managing Director, Rupali Bank Vs Haji Jahan Ara Be gum and others, 21 BLD (AD) 137.
Order XXI, Rule 26
When the plaintiffs got a decree on contest and the petitioners were parties in the original suit, further proceedings of the execution proceeding cannot be stayed for the sake of filing a subsequent suit by the petitioners. Md. Jabed Ali Sheikh & -others v. Md. Abdus Sobhan Sheikh & others, 22 BLD (AD) 183.
Order XXI Rules 26 and 29
Stay of execution of a decree when to the refused?
If it appears to the Court that the petitioner filed successive suits to frustrate the decree obtained in an earlier suit, the prayer for staying the further proceedings of the execution case is liable to be rejected as being not bonafide. The stay of an execution case is purely a matter of judicial discretion for the Court and when the exercise of such discretion is justified by the materials on record, the same calls for no interference by the Appellate Division.
Asia Khatun being dead her legal heirs and representatives : Bulbul Ahmed and others Vs. Rahatun Nesa and another, 15 BLD (AD) 47.
Order XXI Rule 29
It provides that where a suit is pending in any Court against the holder of a decree of such Court at the instance of the judgment- debtor, the Court may stay execution of the decree until the pending suit has been decided. This contemplates the pendency of a suit between the decree-holder and the judgment debtor in respect of the decree in question and it has no reference to any suit filed by a third party. In the instant case, by the impugned order the execution cases have been stayed at the instance of a third party and as such the same is not maintainable in law.
Abul Kalam Vs. Kafiluddin, 16 BLD (HCD) 617
Ref: 1981 BCR (HC) 01; 15 BLD (AD) 47 — Cited.
Order XXI, rule 29- It is by now a well settled legal principle that a stranger to a decree cannot invoke the provisions of Order XXI, rule 29 of the Code for staying the proceedings of an execution case and for ready reference. Zainab Banu =VS= Md. Nisar Uddin, [3 LM (AD) 503]
Order XXI Rules 26 and 29
Stay of Execution of a Decree
The granting of stay of the execution of a decree is in the discretion of the Court but such discretion must be exercised judiciously. The High Court Division was wrong in mechanically staying the execution of the decree passed by a competent Court without considering the facts and circumstances of the case and the materials on record, on untenable and frivolous pleas.
Abdul Karim Sarkar and others Vs Moslemuddin Fakir alias Moslemuddin Sarkar and others 17 BLD (AD) 61.
Order XXI Rule 29 read with section 151
An application for stay under Order 21 Rule 29 read with section 151 of the Code is maintainable in the subsequent suit challenging the decree pending in the same Court for stay of the execution proceeding arising out of the decree between the judgment creditor and the judgment debtor.
Zagir Hussain Vs. Aminul Haque and others, 19 BLD (HCD) 366.
Ref: PLD 1957 (Dhaka) page 603; AIR 1931 Bombay 247—Cited.
Code of Civil Procedure [V of 1908]
Order 21, rule 29 read with Section 151
Where a person claimed that he was in possession of the disputed property and if it was sought to be delivered in a proceedings to which he was not a party it was certainly a matter that could be regarded as an abuse of the process of Court and as such, the civil court could stay the execution case under its inherent power.
The Appellate Division held that the plaintiff who was a 3rd party in the execution case in question having categorically asserted that he had his homestead in the suit land and he was in possession thereof and on holding local inspection, the fact of existence of dwelling houses having been found in respect of which earlier decree was passed and that the defendants themselves filed the suit for evicting him therefrom and thus they admitted the plaintiff's possession in the suit land prima facie shows that it would have been an abuse of the process of Court if the possession of the suit land would have been delivered to the decree-holder through the execution case in question before the suit was being heard. Besides the above, in the plaint, the plaintiff also alleged fraud in obtaining the decree in the suit giving rise to the execution case in question. In the above back ground, the High Court Division did not commit any error of law holding that the learned Dis- trict Judge rightly passed the order staying further proceedings of the execution case in question. Therefore, no interference is called for with the impugned judgment and order. Zainab Banu and others -Vs- Md Nisar Uddin and others (Civil) 15 ALR (AD)192-196
Order XXI Rule 32(2)
Where on evidence it is proved that the university authorities wilfully disobeyed the order of the Court in publishing the result of the plaintiff, they are liable for civil imprisonment or attachment of the property f university as envisaged by Rule 32(2) of Order 21 C.P.C. The Order of the Court directing the university authorities to publish the result of the plaintiff partakes the nature of mandatory injunction, wilful disobedience of which makes the judgment-debtors liable for detention in civil imprisonment and their properties are liable for attachment under Order 21 Rule 32 (2) C.P.C. University of Chittagong and another Vs. A.KM. Monirul Haque and others, 15 BLD (HCD) 551.
Code of Civil Procedure [V of 1908]
Order 21 Rule 37 and 38 read with
Administrative Tribunal Act, 1980
Section 4(2)
Agrani Bank Limited has not complied with the earlier order passed by the Administrative Tribunal which was upheld by the Administrative Appellate Tribunal. That order, having not been challenged, is binding upon the Agrani Bank Limited.
Since the Agrani Bank was not complying with the order of the Administrative Appellate Tribunal, the respondent filed Miscellaneous A.T. Case No. 8 of 2008 (Execution) under order XXI Rule 37 and 38 of the Code of Civil Procedure. Upon hearing the parties the application was allowed by order dated 17.01.2012 directing the concerned authorities to pay all the dues to the espondent up to 26.10.2008, the date on hich he was reinstated. This order was pheld by the Administrative Appellate ribunal by the impugned judgement, dated 2.02.2013. The Administrative Appellate Tribunal found that the respondent was entitled to get arrear salary and pension enefit till 26 10.2008 and that the order of Agrani Bank Limited was in gross Violation of the earlier order of the Tribunal, and that the latest order of the Tribunal dated 17.01.2012 was not illegal. Having perused the earlier orders of the Administrative Tribunal it is patently clear that Agrani Bank Limited has not complied with the earlier order passed by the Administrative Tribunal which was upheld by the Administrative Appellate Tribunal.. That order, having not been challenged, is binding upon the Agrani Bank Limited. In the facts and circumstances detailed above, the Appellate Division does not find any illegality or infirmity in the decision arrived at by the Administrative Appellate Tribunal, Dhaka. In the Appellate Division view, the decision does not call for any interference by the Appellate Division. Accordingly, the civil petition for leave to appeal is dismissed. Agrani Bank Limited and others-Vs- Md. Salek Uddin (Civil) 23 ALR (AD) 14
Civil Procedure Code [V of 1908]
Order 21, Rules 43, 68, 69, 77, 78 & 79-Whether the executing Court is competent to cancell the auction after confirming the auction-sale.
Once the auction-sale is confirmed by the executing Court upon being satisfied. that the auction-purchaser has complied with the Directions and Orders issued/passed by the executing Court from time to time, including the payment of the consideration money within the stipulated time, then there is no scope for the executing Court to show any sympathy to the Judgment-Debtor even if the Judgment Debtor pays full decreetal amount together with a further amount of solatium after confirmation of auction-sale. Bangladesh Maritime Carriers Ltd. Vs. Jamuna Oil Company Lid and others (Civil) 16 ALR (HCD) 313-317
Order XXI Rule 52
Bangladesh Bank Order, 1972, Section—71
The Governor of Bangladesh Bank is a Public Officer for the purpose of Part IV and Order 21 Rule 52 C. P. C. as well as within the meaning of Article 71 of the Bangladesh Bank Order, 1972.
The Code of Civil Procedure and the Bangladesh Bank Order, 1972 are both acts of Parliament. The Governor of Bangladesh Bank being a Public Officer is under a legal obligation to obey the direction of the Court for payment of the decreetal amount out of the ‘Consolidated Fund” for the satisfaction of the decree and in doing so no further or independent instrument is necessary. Bangladesh Bank Vs. Mrs. Rana Awan and others, 15 BLD (HCD) 27.
Order XXI, Rule 58
If in execution of a decree any property is attached, any person interested in it may raise objection that such property is not liable to attachment. After such claim or objection is raised, the Court should investigate and adjudicate upon the claim or objection. It appears that the executing Court without any investigation rejected the application by two words. Where a third party has claimed property under attachment in execution of a decree and filed an application under the provision of law, it becomes the duty of the Court to investigate the claim. The executing Court should not reject the application without assigning any reason. Foyez Ahmed and others v. Uttara Bank Ltd. and others, 22 BLD (HCD) 564.
Code of Civil Procedure [V of 1908]
Order 21 Rule 58 read with
Artha Rin Adalat Ain [VIII of 2003
Section 57 read with
Transfer of Property Act, 1882
Section 91 and 92
The right of redemption of the petitioner is protected as per provision of section 91 of the Transfer of Property Act, 1882. The Artha Rin Adalat has ample power to allow redemption of the mortgaged property after satisfaction of the bank's claim.
It appears to the High Court Division that the petitioners were added as 3rd party in Execution Case No. 01 of 2002 and it was for recovery of money. They have interest as such they have paid of the decreetal amount along with interest of Tk. 15,12,805/. Therefore the bank is to release the mortgaged property in favour of the petitioner but fact remains that there is a money suit being Money Suit No. 41 of 1999 wherein an application was allowed under Order 38 Rule 5 of the Code of Civil Procedure and the property is under attachment. The instant case property may be released subject to clearance from the money suit case No. 41 of 1999. The order Nos. 67 to 85 is however become redunded as already the petitioner has obtained an order in Writ Petition No. 5212 of 2003 postponding the auction till disposal of the petition of redemption. However, the right of redemption of the petitioner is protected as per provision of section 91 of the Transfer of Property Act, 1882. The Artha Rin Adalat has ample power to allow redemption of the mortgaged property after satisfaction of the bank's claim. The order in Writ Petition No. 5212 of 2003 was not communicated to the Artha Rin Adalat in time by the petitioner due to his illness. Meanwhile Artha Rin Adalat passed vide Order No. 67 dated 13.6.2007 directing judgment debtors to pay Tk. 13,77,506/85 in 4 equal installment by 10 of each months. Against which the Bank filed writ the petition No. 7532 of 2007 challenging Order No. 67 dated 13.6.2007 and that was rejected summarily. Under such facts and circumstances the High Court Division finds substance in this Rule. Accordingly the Rule is made absolute subject to release of attachment made in Money Suit No. 41 of 1999. Mostafa Sadique and others -Vs- Artha Rin Adalat No.4. Dhaka and others (Civil) 23 ALR (HCD) 19
Order 21, Rule 58
The property has been attached for exe-. cution of decree which was obtained on contest and the property has been attached for realization of the decretal dues of Habib Bank Limited.
Uttara Bank Limited was not a third party claimant as such the application under Order 21 rule 58 of the Code of Civil Procedure by them was incompe- tent. The High Court Division further held that Uttara Bank Limited may how- ever represent their claim before the executing Court and the executing Court will decide the claim in accordance with law. Uttara Bank Limited vs. Subordinate Judge and Artha Rin Adalat No.4, Dhaka (M.M. Ruhul Amin J (Civil) 4 ADC 522
Order 21, Rule 21, 89
Judgment debtor was put into auction and the respondent No. 2 being the highest bidder the suit property was sold to him in the auction sale. Md. Mokaddas Ali and others vs. Artha Rin Adalat (Sub-ordinate Judge). Dinajpur & others (M.M. Ruhul Amin J)(Civil) 4 ADC 562
Code of Civil Procedure [V of 1908]
Order 21 rule 83 read with
Artha Rin Adalat Ain [VIII of 2003]
Section 33(5)- The postponement of sale under rule 83 is at the discretion of the Court and not dependent on the consent of the parties. No sale shall be postponed unless a fair case is made out in favour of raising amount of decree.
The petitioner failed to show the High Court Division how to raise the proceeds of sale by selling the mortgage property through private alienation and unless such satisfaction, the Court cannot grant a judgment debtor to take the privilege of order XXI of rule 83 of the Code.
Since the certificate under section 33(5) of the Ain, 2003 has been issued in favour of the decree-holder bank, for possession and enjoyment of the mortgaged property with the liberty to sell, the decree holder bank shall take fruitful effort to get the decretal amount with interest thereof by selling the mortgaged property.
The High Court Division held that the petitioner failed to satisfy the Court upon showing any sort of document namely placing the Mouza rate of the property wherefrom the Court can consider his submission in accordance with the provisions of order XXI sub-rule (1) and (2) of rule 83 of the Code. There is no doubt Court can grant certificate to a judgment debtor to sell the mortgaged property in order to raise the amount of decree under the provisions of sub-rule (1) and (2) of rule 83 of order XXI of the Code if the said sale of property is not directed to be sold in execution of a decree for sale in enforcement of a mortgage of or charge on, such property. The petitioner failed to show the High Court Division how to raise the proceeds of sale by selling the mortgage property through private alienation and unless such satisfaction, the Court cannot grant a judgment debtor to take the privilege of order XXI of rule 83 of the Code. There is another impediment to private sale of the mortgaged property as the property is not in hand of the Court. Since the certificate under section 33(5) of the Ain, 2003 has been issued in favour of the decree-holder bank, for possession and enjoyment of the mortgaged property with the liberty to sell, the decree holder bank shall take fruitful effort to get the decretal amount with interest thereof by selling the mortgaged property. However in that case, the High Court Division considers it prudent to direct the decree holder-bank to communicate such effort to the petitioner- judgment debtors so that they can take effective steps to save their property upon satisfying the decretal amount under the provisions of order XXI, rule 89 of the Code in accordance with law. Having gone through the materials on record and reasons stated hereinbefore, the High Court Divi- sion does not find any substance in the Rule. Accordingly, the Rule is discharged. S.M. Shadat Hossain -Vs- Ministry of Law and 2 (two) others. (Spl. Original) 15 ALR (HCD) 308-310
Order XXI Rule 85 and 86- Specific procedure for holding auction- Artha Rin Adalat is a Civil Court and subject to the provisions of the Ain, the Artha Rin Adalat have all the powers and jurisdictions under the Code of Civil Procedure, 1908- In the case of Sultana Jute Mills Ltd. And others Vs. Agrani Bank Ltd. and others reported in 14 BLD(AD) 197 this Division observed that the Artha Rin Adalat Ain is a special legislation providing for special measures to realise loans given by financial institutions. Section 5(4) of the Act gives Artha Rin Adalat the powers and jurisdiction of a Civil Court, but subject to the provisions of the Act itself. Section 5(5) of the Act makes the Code of Civil Procedure applicable to the proceedings of the Artha Rin Adalat but only if the Ain does not contain anything different. Reported in 20 BLD (AD) 162 stating that according to subsection (4) of Section (5) of the Ain the Artha Rin Adalat is a Civil Court having all the powers and jurisdiction under Civil Procedure Code, 1908, subject to the provision of the Ain.
Reported in 8 MLR(AD) page 4 observed that under Section 5(4) of the Artha Rin Adalat Ain, 1990, the Artha Rin Adalat is a Civil Court and subject to the provisions of the Ain, the Artha Rin Adalat have all the powers and jurisdictions under the Code of Civil Procedure, 1908. observed that under Section 5(4) of the Artha Rin Adalat Ain, 1990, the Artha Rin Adalat is a Civil Court and subject to the provisions of the Ain, the Artha Rin Adalat have all the powers and jurisdictions under the Code of Civil Procedure, 1908.02
The instant auction was held under Artha Rin Adalat Ain, 1990 which did not provide specific procedure to be followed for holding auction and as to time limit for payment of auction money, the Adalat followed the provision of the Code of Civil Procedure rightly. Consequently, we do not find any force in the submissions.
The appeal is allowed. Judgment and order of the High Court Division is set aside. The impugned orders of the Adalat are hereby declared to have been passed without lawful authority and are of no legal effect. The Adalat shall proceed with the Execution Case in accordance with law. ...S.M. Masud Hasan =VS= Judge, Artha Rin Adalat No.3, Dhaka, [7 LM (AD) 117]
Order XXI Rules 85 and 86
Time for full payment of purchase money and procedure in default of payment It provides that the full amount of the purchase-money payable shall he paid by the purchaser into the Court before the Court closes on the 15th day from the date of sale of the property after deducting the set-off, if any, to which the purchaser may be entitled under Rule 72.
Rule 86 of the above Order provides that in default of payment within the period mentioned in Rule 85, the deposit money may, if the Court thinks fit, after defraying the expenses of the sale, be forfeited to the Government, and the property, be re-sold and the defaulting purchaser shall forfeit all claims to the property or any part of the same for which ft may subsequently be sold.
In the instant case, the auction took place on 9.5.1984 and the auction purchaser deposited one fourth of the bid-money and he was required under the law to deposit the balance of the money on or before 24.5.1994 but without making full payment within time, the purchaser filed an application before the Court on 9.6.1994 for allowing him time to deposit the balance of the bid-money and the Court allowed his prayer till 30.6.1994. This order granting time to the purchaser is clearly beyond the scope of Order 21 Rules 85 and 86 of the Code and is illegal because by that time the auction purchaser forfeited all his rights to the property as well as to the earnest money.
Sonali Bank Vs. Md. Siddiqur Rahman Bhuiyan and another, 15 BLD (HCD) 610.
Ref: Nawal Kishore Vs. Bhuttu Mal, A.I. R. 1935 (All) 243; Haj Enam UBah Vs. Mohammad idris, A.I.R. 1943 (All) 282— Cited.
Code of Civil Procedure [V of 1908]
Order 21 Rule 90
Artha Rin Adalat Ain [VIII of 2003] Section 33(2ga) Whether the Adalat should accept the highest offer inspite of raising objection by the Bank and the borrower by filing application under section 33(2ga) and ultimately by filing miscellaneous cases under Order 21 Rule 90 of the Code.
The High Court Division held that under the Artha Rin Adalat Ain, in course of realization of Banks' loan when the property is mortgaged as security, the Adalat disposes the same for the interest of the Bank in order to recover its dues and in doing so the Adalat acts as an handling agent. By the decree under artha rin suit and on failure to pay it by the judgment debtor, the Act, 2003 provides procedure to dispose of mortgaged property by the Adalat under section 33 of the said Act by way of selling the same through auction or by issuing certificate in favour of the decree-holder-Bank under section 33(5) of the said provision whereby the Bank itself can again sell the said property through auction and thirdly, the Bank has got another option to get the property by way of title certificate under section 33(7) of the Act. Therefore, the Adalat is not obliged to sell the property even at the lower price, particularly, when the Bank (decree-holder) raises objection to the value and it has the scope to dispose of the said property under sections 33(5) and or 33(7) of the Act, 2003. Agrani Bank Limited Vs. The Judge, Artha Rin Adalat, 1" Court, Dhaka and others (Spl. Original) 18 ALR (HCD) 285-293
Code of Civil Procedure [V of 1908]
Order 21, rules 90 and 91
Artha Rin Adalat Ain [VIII of 2003]
Section 32-The application under section 32 of the Ain, 2003 was not maintainable as the same was filed without depositing security equivalent to 25% of the decretal amount as per provision of section 32 of the Artha Rin Adalat Ain, 2003.
The Appellate Division observed that sub-section (2) of section 32 shows that it is the precondition to deposit security equivalent to 25% of the decretal amount in order to lay claim to an immovable property involved in an execution case, but admittedly in this case, the petitioners did not deposit any security for the said amount. The language of sub-section (2) is absolutely mandatory in nature consequence of non-deposit of such security has been provided therein and since the petitioners did not deposit security equivalent to 25% of the decretal amount, their application was incompetent Therefore, the Appellate Division does not find any error with the impugned judgment passed by the High Court Division in affirming the order passed by the Artha Rin Adalat in that respect. It further appears that the mortgaged property was sold in auction on 19.01.2010, whereas the application under section 32 of the Ain, 2003 was filed by the petitioners on 11.02.2010. The High Court Division took notice of the fact that the sale certificate of the auction sale was issued on 21.03.2010 and was registered on 22.03.2010, whereas the Rule in the writ petition was issued on 05.05.2010 and the learned Advocate for the petitioners could not deny the said fact before it. The fact that the sale certificate in respect of the mortgaged property was issued on 21.03.2010 and was registered on 22.03.2010, has not been denied in the leave petition before this Division. In view of the above, the Appellate Division finds no merit in this leave petition. Mohammad Gias Uddin Chowdhury and others -Vs- Bangladesh, repress-ented by the Secretary, Ministry of Law, Justice and Parliamentary Affairs, Bangladesh Sec- retary, Ramna, Dhaka and others (Civil) 16 ALR (AD) 125-127
Code of Civil Procedure [V of 1908)
Order 21 Rule 95 read with
Public Demands Recovery Act, 1913. Merely because the form under CPC has been used, it cannot be said to ba forged.
The Appellate Division has examined th form prescribed under the CPC and th form prescribed under PDR Rules and appears that both the forms are more or les identical in nature. However, it b mentioned that forms under CPC has be used in the auction sale certificate and w of delivery of possession and so the wo decree of the said printed form remained it. Therefore, merely because the for under CPC has been used, it cannot be sai to be forged. Exhibit 2 and 2(ka) were issued in the year 1953, i.e. these documents are more than 60 years old and produced from genuine custodian of the same. Thus, The Appellate Division does not find Exhibit 2 and 2(ka) are forged documents rather, on perusal of the documents it appears to us that these documents are original/genuine documents. (Per Zinat Ara J. majority) Zakir Hossain and another Vs. Md. Yousuf Kabir and another (Civil) 17 ALR (AD) 35-59
Order 21, Rule 99
The executing court noticed that the prayer for stay was earlier rejected and same was challenged but without success and finally Civil petition No. 331 of 2002 was filed before the Appellate Division which dismissed the same. The executing court also noticed that the petitioner has been trying to delay the disposal of the said Execution Case. Accordingly the executing court by order dated 24.6.2002 rejected the prayer for stay of further proceedings of other Execution Case No.4 of 1998 till disposal of Miscellaneous Case No. 29 of 2002. The petitioner then filed the said Civil Revision No. 3262 of 2002 against the said order dated 24.6.2002 and the rule issued therein was eventual- ly discharged by the impugned judg- ment and order dated 3.5.2002. Shamsul Arefin Rao vs. Mahbub Hossain (Md. Joynul Abedin J) Civil 5 ADC 147
Code of Civil Procedure [V of 1908]
Rules 99 and 101 of Order 21 read with section 151
A transferee pendente lite is not entitled to the benefit of the procedure under Rules 99 and 101 of Order XXI of the Code of Civil Procedure.
Rule 102 of Order XXI of the Code of Civil Procedure does not apply to the purchase of respondent No. 1 and he was admittedly a 3rd party, who was dispossessed in execution of the decree passed in Title Suit No. 103 of 2004 renumbered as Title Suit No. 2725 of 2008. Therefore, Miscellaneous Case Filed by him under Rules 99 and 101 of Order XXI read with section 151 of the Code of maintainable. Procedure Civil was
The Appellate Division opined that in the case in hand, Rafique Ahmed Khan was dead long before the institution of the suit and as such, the purchase of the suit land by the 3rd party from the attorneys of the heirs of Rafique Ahmed Khan cannot be ermed as purchase during pendency of the suit and therefore, the doctrine of lis pendence shall not apply here. In the light of the findings made before, it appears that Rule 102 of Order XXI of the Code of Civil Procedure does not apply to the purchase of respondent No. I and he was admittedly a 3rd party, who was dispossessed in execution of the decree passed in Title Suit No. 103 of 2004 renumbered as Title Suit No. 2725 of 2008. Therefore, Miscellaneous Case filed by him under Rules 99 and 101 of Order XXI read with section 151 of the Code of Civil Procedure was maintainable. The findings. arrived at by the High Court Division having been based on proper appreciation of law and fact do not call for interference. Accordingly, this civil petition for leave to appeal is dismissed. Md. Ali Amjad Khan - Vs. Md. Habibullah Dawn and others (Civil) 20 ALR (AD) 148-150
Order XXI Rules 101 and 103
A bonafide claimant has to be put back into possession of the disputed property as mandated by Rule 101 notwithstanding the Suit filed under Rule 103 to establish the right of the plaintiff to the present possession of the property. The direction under Rule 101 cannot be held back on the ground of institution of the suit under Rule 103 of Order XXI of the Code.
Md. Abdul Kaiyum Vs Krishnadhan Banik being dead his heirs Bijan Kumar Banik and others, 17 BLD (AD) 167.
Order XXII
Although Order 22 does not per see apply to a proceeding in revision, it has been the consistent practice of our Courts to treat an application for substitution in a Revision case under Order 22 C.P.C. and on that analogy if an application is filed beyond 90 days, same plausible explanation becomes necessary to condone the delay. The Rule, of course, does not abate for non-substitution within 90 days. As the power in revision can be exercised suo-motu, Courts have always been liberal in allowing substitution in a revision case provided there is no gross laches on the part of the party concerned.
Badal Kanti Barua and others Vs. Must. Jigarunnessa, 14 BLD (AD) 203.
Ref: PLD 1949 Lahore (FB) 541; AIR. 1977 (Cal) 241; 33 DLR (HCD) 168; 21 I.C’ 407: 18 Cal. L. I. 141—Cited.
Order XXII Rule 10(1)
Procedure in Case of assignment before final order in a suit
The learned Subordinate Judge by exercising his judicial discretion ordered for impleading opposite party No. 2 as a plaintiff in the suit having regard to the fact that he has a substantial interest in the suit property. This kind of judicial discretion is not always open to the revisional jurisdiction of the High Court division unless the discretionary power has been exercised arbitrarily or fancifully and unless the order is contrary to legal principles governing the exercise of such discretion.
Sarafat Au Vs. Pranballav Sarker and others, 18 BLD (HCD) 157
Ref: A1R1959(cal)368; A1R1977(Kerala) 83 ;-Cited.
Order XXII Rule 9
Effect of abatement and setting aside abatement
If no substitution is made within time a suit abates in so far as it relates to the deceased plaintiff or defendant. Rule 9 of Order XXII C.P;C. provides for setting aside abatement or dismissal on the satisfaction of the Court that the party concerned was prevented by any sufficient cause from continuing the suit.
S. M. Anisur Rahman Vs Bangladesh and others, 16 BLD (HCD) 299.
Order XXII Rule 9(2)
Sufficient cause
The expression sufficient cause’ occurring in rule 9(2) of Order 22 of the Code seems to have always been liberally construed so as to advance substantial justice unless there is gross negligence or want of bonafides on the part of the party seeking the relief.
Nurul Islam Sarker and others Vs. Shara Mongala Debi and others, 21 BLD (HCD) 25.
Ref: 48BLD(AP)164; Wali and ors. Vs. Manak Ali and ors, 17DLR(SC)536; Azemon Nessa Vs. Rup Gani, 39 DLR6; Union of India Vs. Charon, AIR 1964 (SC) 215—Cited.
Order XXII, Rule 2
It is true that there is no limitation for substitution of the heirs and deceased parties in a revisional application but in a suit for partition the heirs of the deceased defendants or plaintiffs as the case may be should be brought on record or else the complication shall fol low. In such a situation when an application has been filed for substitution on setting aside the abatement it ought to have been allowed. Md. Hossain vs Dilder Be gum (Mahtnudul Ainin Choudhury J) (Civil) I ADC 49
Order XXII
Substitution and Abatement
Where the legal representatives of a party to a proceeding have already been brought on record in a connected and inter dependent proceeding, even though in a Superior Court, it is totally unnecessary to insist upon a repetation of the same process in lower court. In such a case the question of abatement does not arise.
In the instant case the heirs of deceased defendant No. 3 were brought on record by substitution in Misc. Case No. 25 of 1969 which arose out of the suit, and the same was a good substitution of the heirs of the deceased defendant No. 3 for the suit itself and no further application for substitution was necessary. The plaintiff was only required to file an application for recording by way of correction the names of the legal representatives of the deceased defendant in the plaint.
Akhtar Banu being dead her heirs Alhaj Md. Hossain Khan Vs. Habibunnessa 16 BLD (AD) 273.
Ref: Brijilndar Singh Vs.Kanshi Raw, A1R1917 (PC) 156; Ghulam Abbas Vs. Hashim, 1969 SCMR 257, Gobind Saha Vs. Zafar Kari, A.I.R. 1925(Pat)145 — Cited.
Order 22 rule 9(2) (3)
The learned Judge of the High Court Division has failed to construe properly the application for setting aside the abatement which substantially met the requirements of Order 22, Rule 9 (2) (3) of the Code of Civil Procedure and was wrong in holding that but for a separate application for condonation of delay the prayer for setting aside abatement was to fail. Abdul Kader Mondal and ors - vs- Shamsur Rahman Chowdhury alias & Shamsur Rahman Saha (Latifur Rahman J) (Civil) 3ADC 734
Order XXII Rule 4(1)
Procedure in case of death of defendants-Rights of parties in a partition suit
Defendant No. 5 Abdus Salam contested the suit by filing written statements and died two months before the passing of the final decree on 3.5.1984 without bringing his legal representatives on record by way of substitution. The trial Court allotted a specific saham of land to deceased defendant No. 5 Abdus Salam.
It is true, the rights of the contending parties in a suit for partition are determined in the preliminary decree and the final decree is just a follow-up of the preliminary decree in effecting partition by metes and bounds keeping in view the existing possession of the contending parties as far as practicable. The final decree is, in fact, a continuation of the preliminary decree in course of which the parties are put to actual physical possession of the suit properties according to sahams allotted a specific saham, it is likely that his vital interests would go unrepresented and he is likely to be adversely affected thereby. In the instant case, contesting defendant Abdus Salamhad died before the passing of the final decree without bringing his legal representatives on record. The petitioners are definitely prejudiced by such a decree and their interests have been adversely affected. The learned trial Court erred in law in not substituting the heirs and heiresses of deceased defendant Abdus Salam and in not bringing them on record in the execution proceedings.
Kabirunnessa and others Vs. Abdul Shahid and others, 18 BLD (HCD) 78.
Order XXII Rule 2
There is no limitation for substitution of the heirs of deceased parties in a revisional application. In a suit for partition, the right to sue survives till final decree is made and heirs of deceased defendants or plaintiffs should be brought on record or else complications shall follow.
Md. Hossain and others v. Dildar Begum and others, 22 BLD (AD) 111.
Order XXII, Rule 4 (4)
When a party to a suit dies, then either an application for substitution of his or her heirs! heiresses or an application for seeking exemption in accordance with Order 22 Rule 4 (4) C. P. C. is required to be filed within the statutory period of 90 days. A plaintiff cannot get the exemption automatically without filing an application and the Court cannot exercise the power of exemption after the suit has abated.
Khaled Hamidul Huq and others Vs. Amina Khatun & ors., 15 BLD (HCD) 322.
Order XXII Rule 9(2)
In considering the prayer for substitution the Court has a duty to see whether the application has been filed in time and whether the suit has abated in the meantime for non- substitution.
Mrs Saleha Khatun and others Vs Most Fatema Hajura and others, 20 BLD (HCD) 438.
Ref: Maqbul Ahamed and ors Vs. Shoeb Chowdhury and ors, 44DLR(1992)165; Ref: Md. Matiur Rahman Vs. Lal Banu Bibi and ors. 1986 BLD 432.
Order XXII Rule 10
In the facts and circumstances of the case and in view of the finding of the lower appellate court that because of the formation of trust committee, the appellant as the Secretary of the committee was entitled to be substituted under Order XXII Rule 10 C.P.C. in the suit in question. The High Court Division upon taking an erroneous assumption of the real facts wrongly passed the impugned Judgment.
Falguni Majumder Vs Mokbul Hossain Biswas and ors, 19 BLD (AD) 223.
Order XXII Rule 9(2)(3)
Effect of abatement and setting aside abatement
It has been consistently held by the superior Courts of the subcontinent that the provisions of Order XXII Rule 9(2)(3) of the Code should be liberally construed as the abatement of a suit or a legal proceeding precludes a fresh suit or a legal proceedings on the same cause of action without a trial of the case on merit.
Abatement on the death of a party to a legal proceeding follows automatically unless his legal representatives are substituted within the prescribed time. For setting aside abatement the applicant has to prove that he had no earlier knowledge about the death of the deceased party and he has no laches and negligence in making the prayer for setting aside abatement.
Shakainath Mohanta Vs Md Tatikuddin Mondal and others, 19 BLD (HCD) 570.
Ref: 39 DLR6; Abdul Kader Mondal Vs. Md Shamsur Rahman Chowdhury, Civil Petition No. 40 of 1995—Cited.
Order XXII Rule 9 (2) (3)
It has been consistently held by almost all the superior Court of the subcontinent that the provisions of Order 22, Rule 9(2)(3) of the Code should be liberally construed. The reasoning is that abatement of a suit precludes fresh suits on the same cause of action, although there is no trial on merit of the case if abatement is not set aside the applicant is deprived to the opportunity of proving his case only on account of his culpable negligence or lack of vigilance. Refusal to condone delay may result a meritorious matter being thrown out without any hearing. It is ordinarily always desirable that delay is condoned and substitution is allowed so as to decide a case on merit upon hearing the parties unless there are deliberate negligence on the part of the applicant.
Abdul Kader Mondal and ors. Vs Md. Shamsur Rahman alias Md. Shamsur Rahman Saha, 19 BLD (AD) 183.
Ref: AIR 1964 SC 215; 40 DLR 10; 39 DLR (HCD)6—Cited.
Order XXIII Rule 1 (3)
The dismissal of a suit for non- prosecution does not amount to withdrawal of the suit. In such a case the provision of Order 23 Rule 1(3) of the Code is not applicable and as such the plaintiff is not precluded from filing a fresh suit on a new cause of action on fresh averments.
Amir Hossain Khairati being dead his heirs Aftaf Hossain and others Vs. Abdul Aziz Bepari and others, 15 BLD (AD) 123.
Order XXIII Rule 1 (2)
Formal defect and withdrawal of a Suit
The expression formal defect’ as used in rule 1 (2) of order 23 connotes defect of various kinds not affecting the merit of the suit and it is a defect of form which is prescribed by rules of procedure. Before granting permission to sue afresh on the same cause of action the court must be satisfied that the suit shall fail by reason of some formal defect. This formal defect should go at the very root of the suit.
Monjurul Huq Vs. Monul Huq and others, 15 BLD (HCD) 107.
Order XXIII Rule 1(2)
It provides a discretion to the Court either to allow or reject an application for withdrawal of a suit with permission to sue afresh. But this discretion must be exercised judicially. Since the learned Assistant Judge construed the expression “formal defects” liberally and allowed withdrawal, it cannot be said that he exercised his discretion illegally.
Md. Imran Hossain Momin Vs. Md. Amir Hossain 16 BLD (HCD) 624.
Ref: 32 DLR 176;25 DLR 222; 41DLR (AD)156; 43 DLR (AD)201—Cited.
Order XXIII, rules 1 & 2-A party should not be granted permission to withdraw the appeal as well as the suit unless it is clearly established that the suit as well as the appeal is bound to fail on a mere formal defect which could not be rectified by the plaintiff under normal ordinary circumstances and the interest of justice requires that such permission should be granted. Government of the People's Republic of Bangladesh vs Md Babor Ali Gazi (Civil), 73 DLR (AD) 3
Order XXIII, rule 1-The defect in the frame of the suit as pointed out in the application appears to us formal in framing the suit and because of such defect, the suit shall fail. Zahanara Begum vs Md Motiar Rahman (Civil) 71 DLR (AD) 325
Order 23, rule 1-It is the plaintiff who came before the Court to establish his right, with certain prayer and defendants only appeared in the suit, denying the assertion of plaint and prayed for dismissal of the suit. Trial Court dismissed the suit and appellate Court affirmed the same and thereby the right of plaintiffs was denied, but no right of the defendants was declared, thus the defendants are not at all acquired any vested right. The defendants will not suffer in any means, because, they shall not be vexed with any further litigation on the same cause of action.
The High Court Division held that Plaintiffs are at liberty to bring any appropriate suit before the Court of law, if they are so advised and if the same is not barred by any law of the country in the meantime. And the judgment and decrees passed by both the Courts below in the present proceedings shall have no bearings in consideration of an appropriate suit. Accordingly, the plaintiff-petitioners are permitted to withdraw the suit without according further permission to sue a fresh, with a cost of Tk. 15000/- (fifteen thousands). The Rule is disposed of with above observation. Amir Hossain and others Vs. Md. Hanif and others (Civil) 19 ALR (HCD) 109-111
Code of Civil procedure [V of 1908]
Order 23, rule 1-The provision of Order XXIII, rule 1 of the Code of Civil procedure does not authorize the Court to permit plaintiff to proceed with a fresh suit, with the same cause of action, after laps of a long period and the Court shall not pass any futile order, which bears no legal meaning, because the suit is otherwise barred by limitation. The language of the Order XXIII of the Code of Civil procedure, which clearly gives an unqualified right to plaintiff to withdraw his suit, without a further permission to sue a fresh. And in that situation the plaintiff is precluded from institution of any suit in respect of the same cause of action of the earlier suit, but is not barred under the existing law to bring any fresh suit, with fresh cause of action and with an appropriate prayer. Amir Hossain and others Vs Md. Hanif and others (Civil) 19 ALR (HCD) 109-111
Code of Civil Procedure [V of 1908]
Order 23 Rule 1(1) The writ petitioner being an Assistant Teacher of a non-Government Secondary School, which is neither statutory body nor a local authority, whether petition was not maintainable".
The Appellate Division held that since the decision challenged in the writ petition was of the Board of Secondary and Higher Secondary Education, the Appellate Division finds that the writ petition was maintainable. Moreover, it appears that no such ground of maintainability was urged before the High Court Division. With regard to the merit of the writ petition, the Appellate Division finds that the High Court Division dealt with the matter extensively in making the Rule Nisi absolute. Since no argument was made with regard to the merit of the case the Appellate Division does not propose to dwell on the matter. In the facts and circumstances discussed above, the Appellate Division does not find any merit in this appeal, which is accordingly dismissed. The President. Managing Committee, Bangshal Girls High School and another-Vs-Mrs. Kawser Parvin and others (Civil) 18 ALR (AD) 204-207
Order XXVI, Rule 1
Principles of law as to the scope of judicial review of a detention order and evaluation of the grounds of detention have been grossly violated causing error in the decision on merit and whether a restatement of the said principles has become necessary. (3)
It seems to us that it has become more an academic exercise. The order of detention of the respondent was issued on 11.12.1990 and by the ultimate order of this court it has been declared to have been passed without lawful authority as far back as on 01.03.1998. The submission made on behalf of the respondent that the present exercise in the matter has become mere academic. Bangladesh represented vs. Mr. Mostafizur Rahman (Amirul Kabir Chowdhury J) (Civil) 5 ADC 12
File the suit seeking the relief that alleged deed of gift is false, fraudulent and fabricated.....(2) That the settled principle of law is that the concurrent findings of fact arriving at by the courts below. however erroneous, they may be, is binding upon the High court Division in its revisional jurisdiction and as such the judgment of the High Court Division sought to be appealed is not sustainable in law, that the courts below on appreciation of the evidence on record held that the story of permissive possession has not been proved by the defendants rather it was found by the courts below that the plain- tiff is in possession of the suit land on the strength of registered deed of purchase dated February 25.1947 and this being a finding of fact is binding upon the High Court Division. Shushil Chandra Nath vs. Shanjib Kanti Nath(Md. Ruhul Amin J) (Civil) 5 ADC 21
Writ petitions by way of certorari on...(2) Whether the writ petitioners were appointed in Phase-I of the Project pure- ly on temporary and contract basis upto the completion of the Phase-I or the writ-respondents i.e. the Government was under any legal obligation to absorb them in the phase-II of the Project. (b) whether the Government was free to amend the Project pro-forma enabling it to implement Phase-II of the Project by taking steps for direct appointment of personnel through open competition by inviting applications in the news papers affording opportunity to the writ-petitioners as well as others, (c) whether the impugned order causing publications of notification in the news papers inviting applications for appointment in various posts in Phase-II of the Project were illegal, (d) whether the Government in the Ministry of Agriculture was under any legal obligation to transfer the Project personnel including the writ petitioners to the revenue budget after completion of the Project. Government of Bangladesh vs. Jahangir Alam (Md Joynul Abedin j) (Civil) 5 ADC 29
The suit was field seeking a decree for permanent injunction in respect of the and described...(1) Only because the defendant has produced certain docu- ments and claimed title to the suit land cannot disentitle the plaintiffs to a decree for permanent injunction if the plaintiffs are successful in proving prima facie title and exclusive posses- sion, if the exclusive possession of the plaintiffs is established, suit for granting a decree for permanent injunction shall lie and a party not in possession may resort to the remedy available to him by law but that should not be a ground for dismissing a suit for permanent injunc- tion. Atiqullah alias Atik vs. Mohammad Safiquddin (Md. Ruhul Amin J)(civil) 5 ADC 36
Praying for permanent injunction con- tending, inter alia, that they are owners in possession of the suit land by way of inheritance as well as by purchase....(2) Chairman, Raisree (North) Union Parishad vs. Abdul Khaleque (Md. Tafazzul Islam J) (Civil) 5 ADC 40
Order 26, r. 1.
Examination of a witness on commission allowing it discretionary with the Court-Ground of inability to attend court on account of sick- ness or infirmity should be properly considered by the court when such statements are made through sworn affidavit. [28 DLR (1976) 17]
Order 26 rule 1
The Court is now free to accept the medical certificate from a registered practitioner as a evidence of the sickness or infirmity of the -person concerned; but in my opinion, it is still necessary for the Court to record its satisfac- tion as to the existence of the sickness or infirmity of the person concerned after considering the medical certificate and its further satisfaction that because of such sick- ness or infirmity the witness is unable to come to Court to depose.
From the impugned order in the instant case it does not appear that the Learned Munsif after consideration of the medical certificate has satisfied himself as to the illeness and/or infirmity of the defendant and as to her inability to attend the Court because of such illness and/or infirmity.. [AIR 1993 Cal 296]
Order 26 rule 1
"The Court has a discretion to grant or refuse a commission but the discretion has got to be exercised judi- cially. If the plaintiff insists on the attendance of his witness in Court and the witness apply for their examination on commission, the Court undoubtedly will have to take into consideration the grounds upon which the commission is applied for but at the same time it cannot lose sight of the prejudice that might be caused to the plaintiff by reason of such commission being issued. If sickness or infirmity is alleged, the character and gravity of that sickness or infirmity have got to be assessed and the risk consequent upon a refusal to issue a commission will have to be taken into consideration. At the same time the importance of having the witnesses present before the Court, the advantages that would follow from their examination and cross examination in the presence of the Court and the emergency and which might arise of having them confronted or identified should not be altogether lost sight of. If all the matters are duly considered and the order is passed then and then only can it be said that the order has been passed in the exercise of a judicial discretion". Panchkari Mitra v. Panchanan Saha reported in (1924) 39 Cal LJ 598: (AIR 1924 Cal 971)
Order 26 rule 1
When an application for the examination on commission of a material witness residing within the jurisdiction of the Court is made, before a commission is issued the Court is under the obligation of considering and coming whether the witness is suffering, from any to a definite conclusion illness or if his so suffering, whether the nature of the illness would prevent the witness from attending Court or would make it risky to his life to do so especially when the issue of the commission is for the examination of a plaintiff or a defendant in the suit. [Sarala Sundari Dasi v. Surendra Narayan Roy reported in (1935) 39 Cal WN 595]
Order XXVI
Praying for a decree for declaration of title and recovery of khas possession in the suit land alleging his prior posses- sion and subsequent dispossession by the contesting defendants. Md. Nurul Alam Miah vs. Md. Idris Ali (Moham- mad Fazlul Karim J) (Civil) 6 ADC 605
Order XXVI, Rule 9- Commissions for local investigation- The purpose of local investigation under this provision is to ascertain the nature and feature and market value etc. of any property. Again, quite clearly this provision is not meant for ascertaining possession of property, which can only be done by taking evidence in the course of trial. We are of the opinion that the High Court Division was in error in making the Rule absolute. The appellate Court rightly rejected the application. The appeal is allowed, without however, any order as to costs. The impugned judgement and order of the High Court Division is set aside. ...A.K.M. Fazlul Haque =VS= Bazlur Rahman, [8 LM (AD) 1]
Order XXVI, Rule 10
When the earlier report filed by the Advocate Commissioner was on record and the objection filed against the said report was pending, the impugned orders cancelling the appointment of the earlier Advocate Commissioner and appointing a new Advocate Coin- missioner are contrary to the provision of Order 26, Rule 10 C.P.C.
Shamsul Islam and another Vs Arman Ali and others, 14 BLD(HD) 176.
Order XXVI Rule 9
Local investigation
A court is not bound to issue a commission. It is in the discretion of the Judge to grant or refuse local investigation.
Matasim Ali Chowdhury Vs Md. Ismail, 21 BLD (HCD) 216.
Order 26, Rule 10 of the Civil Procedure Code
Praying for decree for a sum of Tk. 25,80,14,191.00 against the defendant appellants towards compensation on the averments that they obtained loan from Bangladesh Shilpa Bank to set up an industry for manufacturing electric bulbs. Janata Bank and others VS. National Electric Company Ltd. (Md. Tafazzul Islam J) (Civil) 4ADC 764
Order XXVI Rules 9 and 10
An order rejecting a prayer for local inspection should assign proper reasons, and should not be non-speaking order.
Al-Haj Saiful Alam v. Abdul Salam and others, 22 BLD (HCD) 360.
Order XXVI Rule 18
Notice—Parties to appear before Commissioner
It is the duty of the Court to direct the parties to the suit to appear before the Commissioner in person or by their agents or lawyers at the time of local investigation. In the absence of notice by the Court, notice issued by the Commissioner to the parties may be deemed to be sufficient compliance. If no notice is served, on any of the parties to the suit to appear before the Commissioner at the time of local investigation, the result of such local investigation and the report cannot be accepted as evidence and the report is liable to be rejected.
Mahatab All Vs Sree Kartick Chandra Karmakar and others, 18 BLD (HCD) 522.
Ref: AIR. 1934 (Madras) 548; A.I.R. 1960 (Orissa)66; A.1.R. 1962 (Andhra Pradesh) 84: A.I.R. 1962 (Patna) 211; 1987 PU (Lahore) 591; A.I.R.1959 (Andhra Pradesh) 170; A.1.R. 1973 (All) 148; AIR. 1975 (Cal) 303; A.I.R. 1959 (Andhra Pradesh) 64: A.T.R. 1968 (Kerala) 28; A.1.R. 1970 (Delhi) 250; 43DLR(AD) 17; 20 DLR (SC) 221; 22DLR(SC) 177; --Cited.
Order XXVI
Family Courts Ordinance, 1985, Section-20
Although Section 20 of the Family Courts of Ordinance provides that the Code of Civil procedure “shall not apply to proceedings before the Family Courts except sections 10 and 11, this bar cannot be interpreted to be an absolute bar but it must be held to be a qualified and limited one.
The provisions of C.P.C. shall not apply to the Family Courts where alternative provisions have been prescribed for the Family Courts in the Ordinance itself, since the Family Courts Ordinance does not prescribe any alternative provision in respect of examination of witnesses on commission, the provisions of Order 26 C.P.C. apply to the proceedings before the Family Courts.
Md. Younus Miah Vs. Abida Sultana @ Chhandag, 14 BLD (HCD) 291.
Order XXVI, Rule 9 Local Investigation
Order 26 Rule 9 of the Code of Civil Procedure provides for holding local investigation on specified grounds when the court finds a local investigation necessary and proper for the purpose of elucidating any matter in dispute but the court has no power to delegate its authority to the commissioner for ascertaining facts which are required to be decided by him alone on taking evidence.
Md. Belayet Hossain Vs. Shah Alam Parvez and others, 19 BLD (HCD) 359.
Order XXIX Rule 1
Signing and verifications of pleadings
Under the provisions of Order XXIX Rule 1 C.P.C. the Managing Director of a registered company has the legal authority to sign the plaint and pleadings whether or not he has been so authorised by the Articles of Association of the Company. In the present case the Board of Directors of the Plaintiff Company authorised its Managing Director to file the suit on behalf of the Company and by a subsequent resolution the Board of Directors of the Plaintiff-Company authorised Mr. M.R. Islam Azad to file the suit on behalf of the Company. So, the suit is found to have been filed by the authorised person.
Doon Valley Rice Limited Vs. M. V. YUE YANG 16 BLD (HCD) 469.
Ref: A.I.R. 1949 Allahabad 499;PLD 1968(Paragraph 4); PLD (SC) 684; Paragraph 305 of Haisbary’ s Law of England,4th Edition, Volume — I; Mitra’s Carriage of Goods by Sea, at Pages 167 — 168; Princes Royal Lr. (1870)3 ACE 41; 72 C.W.N. 635; 167 ER 269; The Norway 167ER 347; Pieve Superior, L.R. (1874) 5 P.C.482; -- Referred.
Order 31, rule 1 and 2
In such view of the matter if the status quo order granted by this court is maintained the Islamic Foundation can not take any legal steps for its recovery and further in the normal course. The litigations initiated by the plaintiff peti- tioner in the form of filing the title suit can not be expected to be decided fi- nally within near future and as such bal- ance of convenience and in convenience for maintaining the order of statusquo in favour of the Islamic Foundation". Khurshid Alam Khan vs. Government (Md. Muzammel Hossain J) (Civil) 10 ADC 63
Order XXXIV Rules 2(1) and 7
Preliminary decree in Foreclosure Suit and Redemption Suit
The preponderance of judicial decisions in the sub-continent is that whether it is a suit for foreclosure or for sale the Court has to pass a preliminary decree in terms of Rule 2(i) of Order XXXIV and that the Court has no option but to award interest pendente lite to the mortgagee. In a suit for redemption the principle is almost the same, because a preliminary decree therein has to be passed under Order XXXIV Rule 7 C.P.C. The High Court Division acted illegally in not holding that the plaintiff-appellant was entitled to interest pendente lite, i.e., from the date of institution of the suit till the passing of the decree.
Sonali Bank Vs M/s. Beg and Beg Jute Incorporated Ltd. and others, 17 BLD (AD) 313.
Order XXXIV Rule II
Payment of interest pendente lite— Discretion of the Court.
The Court is not obliged under Rule 11 of Order XXXIV CPC to award the contractual rate of interest while awarding interest pendente lite.
The Rule gives the Court a discretion in the matter of fixing the rate of interest to be awarded pendente lite.
Sonali Bank Vs MIs. Beg and Beg Jute Incorporated Ltd. and others, 17 BLD (AD) 313.
Ref: A1R1940(FC)20; AIR 1942 (Patna) 102; AIR 1953 (Born) 445; AIR 1927(PC)I; A1R1958 (Rajasthan)145; AIR 1963 (guj) 253; A1R1957 (Cal) 140; AIR 1970 (Madhya Pradesh) 34; AIR 1953(Bom) 445; AIR 1958 (Rajasthan) 145;—Cited.
Section 34
Order 34, Rule 2, 4 and 11
Thus appears that the preponderance of judicial decisions in the sub continent is that whether it is suit for foreclosure or for sale the Court has to pass a preliminary decree in terms of Rule 2(1) of Order 34 and that the court has no option but to award interest pendente lite to the mortgage. In a suit for redemption the principle is not very different because the preliminary decree therein has to be passed under Order 34 Rule 7 C.P.C which is substantially in the same terms as in Rule 2. Sonali Bank vs M/S Beg and Beg Jute Incorporated Ltd. (Mustafa Kamal J)(Civil) 2ADC 286
Order XXXIV Rules (4), (5) and (6)
In a suit relating to mortgage of immovable property by the Bank, the principal claim’ of the plaintiff is directed against the real borrower and not against the guarantor of the loanee. In such a case the real relief of the plaintiff Bank lies against the property of the principal debtor. For satisfaction of the decretal dues, the court is bound to sell the mortgaged property first and only in the event of non-satisfaction of the decretal dues, the court may fall upon the Other property of the other defendants.
Sheikh Abu Sayyid Vs. Sonali Bank and others, 15 BLD (AD) 161.
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