Code of Civil Procedure, 1908 [Order XI - XXV] | Case Reference

Order XI Rule I

Time limit for Interrogatories Whether the limit is directory or mandatory The intention of the law—make is in making the provision that the plaintiff or the defendant by leave of the Court may deliver interrogatories in writing within 10 days from the date of’ framing of issues is to have a speedy disposal of suits --- - Where the law-makers provide a fixed period of time for doing a thing and does not make any consequential provision to follow in the event of failure to perform the act w tb in the specified period, such pro is ion of law fixing time limit is not mandatory hut directory in nature — Code of Civil Procedure (Amendment) Ordinance (XLVIII of 1 983).

M/s Kohinoor Chemical company Ltd. and others Vs. 14/S. Eastern Shippers and Traders Ltd: 10 BLD (HCD) 108.

 

Order XI Rule I

Discovery by Interrogatories

SCC suit for eviction of tenant on the ground of default — Reply to interrogatories can he decided in a properly framed title suit.

Sree Datal Benerjee alias Muni Benerjee Vs. Sree Sarat Kamar Paul and aiiother 12BLD (HCD) 3

 

Order XI Rule 8

Interrogatories ---— Time to answer interrogatories — According to the amended provision of the Code interrogatories shall be answered within 10 day’s and in that view the Subordinate Judge acted without jurisdiction in allowing the answer in contravention of the provision of the Code — If the Court allows the  interrogatories to he accepted beyond 10 day. Then that will operate against the spirit ol law. Code of Civil Procedure, 1983 Xl VIII oh 1983).

Abbas Ali Vs. Sekandar Ali and others. 8BLD (HCD) 330

 

Order Xl Rule 21

Striking out pleadings for not answering interrogatories —-— Pleading cannot be struck out in the absence of an application therefore. The foundation for the exercise of the power under this Rule is the fulfillment of the two requirements of Rule 2 I of Order Xl of the Code - the first is the failure of the interrogated party to comply with ny order to answer the interrogatory- and the second is the application by the interrogating party to the Court to impose the penalty.

Md. Yusuf Vs. Mofza1 Ahmed Sowdagar, 1BLD (AD) 456

Ref. 26D1.R 519 A.I.R. 1968 All (Lucknow Bench) 119 ----- Cited.

 

Order Xli Rule 6

The expression ‘‘or otherwise” under Rule 6 of Order XII of the Code of Civil Procedure Would empower the Court to see the admission made elsewhere iii the proceeding during the trial and it should not he confined only to written statement — It can also he in the written objection filed against the order of adinterm attachment before the judgment and also in the application made for vacating the final attachment order.

M/s. A. Elahee and Co. Vs. M.M. Aziz and others, 12 BLD (HCD) 31

Ref: PLD 1966 (Karachi) 75: PLDI952

(Dhaka)137; 25 DLR 418; A.1.R.1974MP)75:

(1914) Chancery Division. Vol. 1. 904. Cited.

 

Order XIV Rule 1—3

Evasive denial — Whether any issue is raised by such denial — Doctrine of non-traverse Material averment passed over by evasive denial is taken to he admitted — There was no issue belore the trial Court and as such the appellate Court not is requird to give any finding in respect of ceiling of land in the absence of any specific averment to the contrary.

State Acquisition and Tenancy Act, 1950 (XXVIII> of 1951), S. 90 —- Code of Civil Procedure, 1908 (V of 1908). Or. VIII Rules 3. 4 and 5.

Sultan Ahmed and others Vs. Mohaminad Islam and others, 4BLD (HCD) 183

Ref. 35 DLR 79; 1 BLD (Ad) 280—Cited.

 

Order XIV Rule 2

Issues of law and fact — Court to give decision on all issues The trial of a suit should not ordinarily he held piecemeal — All the issues raised should he disposed of one judgment — The Court may hear the issue of maintainability as a preliminary issue but must postpone its judgment until its findings on other issues are record as well when it pronounces its judgment — Code of Civil Procedure. 1908 (V of 1908a) Or. XV: Code of Civil Procedure, 1983) (XLVIII ‘l983)Or. XXr. 5.

Sultan Miab Vs. Sree Haradlian Sh,aha and others, 8BLD(HCD)293

Ref. 12 DLR (Dhakal 775; 3>) I)LR (SC)30—- Cited.

 

Order XIV Rule I

Issue of fact . When it cannot he entertained — It was tried to he raised before the Appellate Division that the plaintiff N CS die possession covers about 3.50 acres of land whereas according to the plaint he has possession over 1argelarea the question as to the exact area under the exclusive possession of the plaintiff was raised here or the first time — It was not an issue before any of the courts held and as such it cannot he entertained at this stage

Moharram Ali and another Vs. 4fohammad Madhu Mia and others, 9BLD (AD)6 7

 

Order XIV Rule 2

Issue of law — Issue touching maintainability of suit Whether the trial Court committed any error of law in rejecting the prayer for dismissing the suit on the question of maintainability at the stage of its peremptory hearing Whatever may be the trial Courts view on the issue of law, it is not mandatory for the Court to try and determine the issue of facts as well The trial Court may’ hear the issue of maintainability as a preliminary issue but it must postpone its judgment till the hearing of the suit on all other issues and thereafter give its findings on the issue of maintainability and on other issues as well,

Inspector, Railway Nirapatta Bahi iii, Bangladesh Railway, Khulna and others Vs. Sohrab Ali, 10 BLI)( H CD) 195

Ref. 30DLR (SC) 30: I9DLR65; 40 DLR26 Cited.

 

Order XV Rule 3

Court to give decision on all issues -Issues of law and tact — The trial of a suit should not ordinarily be held piecemeal —— All the issues raised should be disposed of by one ludmen1 The Court may hear the issue of maintainability as a preliminary issue but it must postpone its judgment until its findings on other issues are ‘corded as well when it pronounces its judgment—Code of Civil Procedure. 1908 (V of 1908). Or. XIV r. 2: Code of Civil Procedure, 1983 (XL VIII of 19831. or. XX r. 5.

Sultan Miahi Vs. Sree Haradhan Shaha and others, 8 BLD (HCD) 293

Ref. 12 DLR(Dhaka)775; 30 DLR(SC)30—Cited.

 

Order XV rule 3 read with Order XIV rule 2

Framing of issues on law as well as on facts, whether gives the parties a chance to resolve the dispute once for all.

Framing of issues on law as well as on facts gives the parties a fair chance to resolve the disputes in the suits once for all by adducing evidence at a minimum cost and shorter time — Sufficiency of evidence also gives the Court a better advantage in coming to a fair decision and the possibility offsetting in injustice and hardship upon any party becomes minimum.

Naresh La! Saha and others Vs. Bhupati Mohan Roy and others, 11 BLD (HCD) 457

Ref. 30DLR (SC) 30— Cited.

 

Order XV Rule 3

Issue of law — Issue touching maintainability of suit — Whether the trial Court committed any error of law in rejecting the prayer for dismissing the suit on the question of maintainability at the stage of its peremptory hearing Whatever may be the trial Court’s view on the issue of law, it is now mandatory for the Court to try and determine the issue of facts as well — The trial Court may hear the issue of maintainability as a preliminary issue but it must postpone its judgment till the hearing of the suit on all other issues thereafter gives its findings on the issue of maintainability and on other issues as well.

Inspector, Railway Nirapatta Bahini, Bangladesh Railway, Khulna and others Vs. Sohrab Au, 10 BLD( HCD)195

Ref. 3ODLR (SC)30; 19DLR65: 40 DLR 236—Cited.

 

Order XVI Rule 10

The Court can compel the attendance of the witnesses by issuing proclamation and, if necessary, by a warrant either with bail or. without hail, if it has reason to believe that such an evidence or production of document is material and that such person has, without lawful excuse, failed to attend the Court or to produce the document in compliance with such summons or has intentionally avoided service.

The Court, at any time, if it thinks necessary to examine any person, may even suo motu order summons to be served upon him to give evidence or to produce any documents in the Court.

There is no bar is issuing summons upon the cited witnesses for the 2nd time if it is necessary in the interest of justice. The Court ha also inherent power to cause service of summons upon the witnesses of the parties whenever necessary — Of course, if the application for service of summons is not a bonafide one then the Court may, refuse such prayer.

Dildar Hossaln and another Vs. Md. Sharif Hossain and others, 12 BLD (HCD) 412

 

Order XVII Rules 2 and 3

Adjournment of hearing — When the Court can refuse adjournment and dispose of the case on merits —- Since it cannot be said that there were no materials or evidence before the Court so that it could not dispose of the case on merits, the provisions of Rule 3 are more appropriate — In the instant case, the Court seems to have committed no error in deciding the case on merits.

Abdul Gani Jamal Vs. Sarat Kumar Kanangoe, 5BLD (AD) 311

Ref: A.1.R l943 (Born) 321; PLD1969 (SC) 270; 63C.W.N. 300; A.I.R.l941.(Bom) 83; I.L.R. (Cal) 956 - Cited.

 

Order XVII Rule read with Order IX: Rule 6.

When an exparte proceeding can be ordered — It can only be ordered in respect of absence on the day fixed in the summons or on the day to which the hearing of the case has been adjourned.

Adamjee Jute Mills Ltd. Vs. The Chairman, 3rd Labour Court, Dhaka and another, 7BLD (HCD) 67

Ref. PLD1963 (SC) 97 — Cited.

 

Order XVII Rule 2 read with Order 1X Rules 6 and 7

An exparte proceeding against a defendant is permissible when the suit is fixed for hearing in default of appearance or the hearing of the suit is adjourned for further hearing and the defendant fails to appear when the suit is called on for hearing — Law does not contemplate an exparte hearing’ of the suit when the defendant fails to file a written statement — When the law does not contemplate an exparte hearing for failure of the defendant to file written statement such proceeding cannot be treated as an exparte one — Before the dceree is passed in a suit fixed for hearing in default of written statement, the defendant may come to the Court and file a written statement and the Court can accept it in its discretion after giving reasons Superior Court will not interfere with the reason except when it is perverse.

K.D.H. Laboratories Ltd. Vs. Rupali Bank and others, 8BLD (HCD) 92

Ref. A.I.R.1964 (SC) 993; 39DLRI I — Cited.

 

The Code of Civil Procedure, 1908 Order 17, rule 1 (4)

This petitioner appeared in that suit and filed written statement and the suit was ultimately ready for peremptory hearing and peremptory hearing also started and one witness of plaintiffs also was examined in part. Thereafter, on the plaintiffs' prayer several adjournments were allowed. On 24.01.2005 also the plaintiffs prayed for adjournment and the learned Judge allowed that prayer for adjourn- ment with a cost of Tk.200/- fixing 23.02.2005 for further hearing. M. A. Razzaque vs. Syed Maynul Haq (Naz- mun Ara Sultana J) (Civil) 9 ADC 428

 

Order XVIII read with section 151C.P.C.

Question of reopening of the plaintiff’s case by calling fresh witness — In the present case the High Court Division had fallen upon section 151 C.P.C. to meet the ends of justice — It was conscious about the special circumstances which impelled it to provide an opportunity to the plaintiff to examine witnesses after the close of defendant’s witnesses — The discretion used in allowing the examination of witnesses in the manner as provided under Order XVIII C.P.C. has been rightly exercised.

Md. Nurul Islam Vs. Md. Abdur Rashid and others, 3BLD (AD)310

 

Order XVIII Rule 2

Final hearing — Meaning of — The words ‘final hearing’, in the context of the Code of Civil Procedure embrace the entire period during which evidence is given and arguments are concluded.

Chowdhury Tanbir Ahined Siddiky Vs. Bangladesh and others, 8BLD (HCD) 485

 

Order XVIII Rule 16(1)

Order XVIII Rule 16(1) of the Code of Civil Procedure empowers a Court to take the deposition of a witness immediately when a witness is about to leave the jurisdiction of the Court or for further sufficient cause The expression “suffice cause” used in the said rule obviously covers the grounds of a witness being very old or dangerously ill.

Mvi. Badrul Kabir Vs. Maulaiza Abdul Quayum and others, 12 BLD (HCD) 442

Ref. 29DLR (HCD)248 Cited.

 

Order XVIII Rule 17

Recalling and examining witness — An enabling power conferred upon the Court to be used for ends of justice — A litigant cannot claim exercise of such discretionary power when the rules of evidence do not permit, it — Only because it is a highly contested matter this power ought not to have been used.

Nurul Islam Vs. Md. Abdur Rashid

and others, 5BLD(AD)311

Ref. A.1.R. 1965 (SC) 1008; 1981 A.C. 173 (179); A.I.R. 1947 (Bombay) 156 — Cited.

 

 

Order XX Rule 5 read with section 115 C.P.C.

Additional issues — Trial Court omits to incorporate additional issues in the judgment and give necessary finding — Appellate Court’s failure to consider the same and record findings on the issues is an error of law apparent on the face of record.

Mst. Sahera Khatuiz Vs. Mrs. Anwara Khat tin and others, 2BLD (HCD)60

 

Order XX Rule 5

Issues of law and fact — Court to give decision on all issues — The trial of a suit should not ordinarily beheld piecemeal

— All the issues raised should be disposed of by one judgment — The Court may hear the issue of maintainability as a preliminary issue but it must postpone its judgment until its findings on other issues are recorded as well when it pronounces its judgment.

Sultan Miah Vs. Sree Haradham Shaha and others, 8 BLD (HCD) 293

Ref. I2DLR (Dhaka) 775: 30 DLR (SC) 30 —Cited.

 

Order XX Rule S

Issue of Law — Issue touching maintainability of suit — Whether the trial Court committed any error of law in rejecting the prayer for dismissing the suit on the question of maintainability at the stage of peremptory hearing?— whatever may be the trial Court’s view on the issue of law, it is now mandatory for the Court to try and determine the issue of facts as well — The trial Court may hear the issue of maintainability as a preliminary issue but it must postpone its judgment till the hearing of the suit on all other issues and thereafter give its findings on the issue of maintainability and on other issues as well.

Inspector, Railway Nirapatta Bahini, Bangladesh Railway, Khulna and others Vs. Sohrab Ali, IOBLD (HCD) 195

Ref: 30DLR (SC) 30: 19 DLR65: 40 DLR 236 — Cited.

 

Order XX Rule 18

Partition of undivided family dwelling house—Procedure to be of followed by the Court in deciding the prayer for purchase of the share from the stranger — purchaser — Whether the High Court Division is justified in setting aside concurrent decision of the Courts below allowing the prayer for repurchase of the share of the stranger purchaser by a member of the undivided family dwelling house — The jurisdiction of the Court is limited to questions relating to the rights of the co-sharers of the original undivided family to compel the stranger transferee to sell to the former the portion of the dwelling house purchased by the latter — The purpose of section 4 of the Partition Act is to see that a transferee outsider does not force his way into a dwelling house in which other members of the transferor’s family have right to live —- Once a partition decree is made in petitioner form the rest is for the Commissioner but the Court at that stage is not concerned as to what direction should be given to the Commissioner for completing the partition — The Court can only give a limited direction as to which plot is to be partitioned — The rest will be decided at the stage when the Commissioner submits his final report and the Court proceeds to consider the same— Partition Act. 1893 (IV of 18931, S.4.

Sree jugal Kishori Sarker Vs. .4zizur Rabman and others, 8BLD (AD)) l1

Ref. 60C.W.N. 829; A.I.R. 1928 Cal 539:

A.I.R. 1960 Cal 467: 12 Cal-U. 525; 22 C.W.N. 515; A.I.R. 1919 (Cal) 1055: A.I.R. 1928 Cal 539—Cited.

 

Order XX Rule 19

Counter claim in a suit — Whether counter claim made by the defendant is enter tamable — The trial Court has expressed its discretion in favour of allowing the counterclaim and there is no reason for setting it aside oh the ground that the amount of the counterclaim is bigger than that claimed in the plaint by the plaintiff— One of the ends of justice is to avoid multiplicity of proceedings and it cannot be a good argument for pushing the defendant to file a separate suit — There is also no prohibition against entertaining counter-claim in the same suit,

Messers United Shipping Corporation Limited Vs. W.H. Bennett and others, 4BLD (AD) 316

Ref.I27DLR (AD) 170: 46 C.W.N. 882 (885); A.I.R.1972 (SC)l048; A,I.R.l975 (Cal) 150; A.I.R. 1964 (SC) II — Cited.

 

Order XXI Rule 15

Decree — Execution of — Question of execution in a case of joint decree holders some of whose property became vested property — Even assuming that the interest of a decree holder became vested property and the decree to the extent of his interest cannot he executed, there is no reason why the decree to the extent of the interests of other decree holders cannot be executed — Orders of the Courts below refusing execution on such grounds are set aside and the case is sent track on remand for fresh decision,

Tanjina Khatoon Vs. Nabaruddin and others, 1OBLD (HCD) 250

 

Order XXI Rule 22(3)

Execution of decree — Effect of omission to issue notice In view of the amended provision the observations of the High Court Division that the execution case was rightly dismissed by the first appellate Court for want of notice do not seem to be justified — Since the decree has already been put into execution and possession delivered to the decree holder the non-service of notice cannot be said to have vitiated the execution proceeding

Nurul Alam Chowdhury and others Vs. Azimunnessa Khatun and others, 5BLD (AD) 179.

   

Order XXI Rule 29

Stay of execution of a decree — The power to stay is discretionary with the Court — But the discretion should be exercised judicially — The Courts below were not correct in holding that the executing Court was not competent to stay execution of the decree — However, the judgment debtor sought to undo the decree on the ground that it was obtained on the basis of a false claim — His plea that he was prevented by illness from contesting the suit has been negative in a civil revision case arising out of an application under Order IX Rule 13 C.P.C. His suit is bad, prima facie and has little chance of success — 1-Ic was not therefore entitled to get an order of stay of the execution.

A.K.M. Kabiruddin Vs. Mointaz Begum and others, 4BLD (HCD) 223

Ref. 29DLR (SC) 282 — Cited.

 

Order XXI Rule 29

Stay of execution of decree — Refusal of prayer for stay when interfered with — It is true that the facts in the present case authorize an Executing Court grant stay of execution of the decree but it does not necessarily mean that the stay cannot refused even in an appropriate case The opposition could not however be disputed that even if prayer for stay was granted it ought to have been granted for a reasonable time for the appellants suit to be disposed of -— None appeared to oppose this appeal, nor did any appear before the High Court Division on half’ of the respondents — Having considered all aspects of the case, stay already granted is allowed to continue for four months re in course of which steps are to he taken et the suit disposed of.

Soleman Miah and others Vs. Ishaque being dead his heirs Jairun 4ssa and others, 9BLD (AD) 73

 

Order XXI Rule 29

Money Execution case— W h e n execution proceedings should not he stayed — Mere filing of appeal is not sufficient to warrant slay of execution of the decree — Stay is a matter of discretion of the Court — High Court Division has given due consideration to the question as to the balance of convenience and inconvenience, nature of the decree and the submissions made on behalf of both the parties and took the view that the execution proceedings should not be stayed — The discretion has not therefore been wrongly exercised — But in view of the hardship to which the appellant might be put if the decree is executed the execution case may be stayed on payment of half of the decrial amounts.

Anwar Hossain Bhuiyan Vs. Sheikh Moslem Ali 10BLD (AD) 125 Order XXI Rule 32

Decree of prohibitory injunction — Violation of the decree — Decree-holders’ remedy lies in the enforcement of the decree under Order XXI Rule 32(1) of the Code apart from any other remedy that he may have had.

The expression “willfully failed to obey” in Order XXI Rule 32(1 ) of C.P. Code denotes not only a negative act of willful failure to obey but also a positive act of disobedience.

Moyna Mia and others Vs. Haji Abdus Samad, IBLD(HCD)124

Ref. I6DLR6I; AIR. 1945Oudh)8l A.I.R.1961 (Mys) 268; AIR. l938(Pat) 522: A.I.R. 1950 (Mad)237 AIR. I 954(Nag) 245; A.I.R. 196 l(Pu) 547; PLD 1960 (Dac) 1022 —Cited.

 

Order XXI Rule 32

Decree for injunction — Question of disobeying such a decree — It was imperative to find that the defendant had willfully disobeyed the order of the Court — To haul up the defendant for disobedience of injunction something more was necessary such as evidence that he had knowledge of the High Court’s order or that he had been served with notice of such an order and he willfully disobeyed it.

Kad Banu and others Vs. Hajera Khatuii and others, 4BLD (AD) 302

Ref. 8 Cal. 174; 21 Cal. 74; 10 C.W.N. 297 — Cited.

 

Order XXI Rule 32

Disobedience—remedy

When a decree for injunction is passed against any party and he had the opportunity of obeying the decree and he will fully failed to obey it, the decree may be enforced by detaining him in civil prison or by the attachment of his property or by both.

Sashi Mohan Sen Vs. Ain Ullah, 12BLD (AD) 8 Order XXI Rule 32

 

Violation of prohibitory injunction

When a prohibitory injunction is violated, the remedy is not by putting the decree into execution hut by adopting other measures as provided by law — Where the prohibitory injunction has been violated, the decree is not executable and the execution case is not maintainable for any of the remedies under Rule 32 of Order XXI of the Code of Civil Procedure.

Ajiran Nessa Bewa and others Vs. Md. Abdul Mannan, 12 BLD (HCD) 323

Ref. IÔDLR6I; 33 DLR 207; 13 DLR

531; 1934 CaI.402; 1938 Pat.522 Mysore 268;

1961 Punjab 547; 1969(AP)92: 1969(Kerala)

232—Cited:

 

Order XXI Rule 34

Draft of document — notice upon,

judgment debtors — Whether service of copy of the draft document on the judgment debtor in a proceeding for execution of a decree for specific performance of a contract for sale is mandatory — When a draft document is placed before the Court it is the mandatory recluirement of Law that the Court shall thereupon cause the draft document to be served on the judgment-debtor together with a notice requiring his objection, if any, to be made within a specified time — Withoui giving notice to thejudgment debtors and without causing the draft to be served on the judgment debtors the Court accepted the draft copy merely on the report of the Sherestadar — This was absolutely illegal and unwarranted.

Majeda Begum and another Vs. Khoda Box Mollah and others, 7BLD (HCD) 267 Order XXI Rule 35

The decree-holders have the right to get the actual possession of the suit property in terms of the decree, the policy of law being to avoid multiplicity of proceedings.

Ahmed Au and another Vs. Hazi Abdur Rashid and others, 11 BLD(HCD)1 7

Ref. A.I.R. 1917 (All) 129; A.I.R. 1936

(All) 655; A.I.R. 1941 (Born) 37; AJ.R. 1955 (All) 382; A.I.R. 1934 (Cal) 793; AIR. 1959 (Punjab) 468; A,I.R. 1961 (SC) 137; A.I.R. 1931 (Cal) 427 : 35 C.W.N. 12: A.I.R. 1931 (Cal) 427 — Cited.

 

Order XXI Rules 35, 36, 97 to 100 read with section 151 C.P.C.

Execution of decree for ejectment —— Construction of Order and Rules — Locus Standi.

Order XXI Rule 97 : Unless and until the decree-holder makes an application under Order XX1 Rule 97 of the Code, a person who is not a party to the decree, has no locus standi to make an application under Rule 99- for adjudication of his alleged claim of title or possession over the disputed property. If he makes such an application the same is liable to be dismissed as being not maintainable.

Where the decree-holder made no complaint under Rule 97 alleging any resistance or obstruction by the petitioners in obtaining possession in execution of the decree, it was not - open to the petitioners, who are third parties. to make any independent application under Rule 99 seeking adjudication of their alleged claim.

Regarding 151 C.P.C.— there being a remedy open to a third party by way of a separate suit—There was no room for exercise of the inherent power.

Haroon and another Vs. Mst. Sufia Khatun and another, 11 BLD (HCD) 374 -

Ref. A.I.R. l980(MP) 146; 1972 .MPLJ

254; A.I.R. 1933(Nag) 369; A.I.R. 1941 (Nag)322; A.I.R. 1953 (Cal)399: A.1.R 1935(Nag)2l2; 1964 MPLJ (Note) 126: A.I.R. 1983 (MP) 44; A.I.R. 1985 (Punjab and Hariana) 181; A.I.R. 1952 (Orissa) (FB)’d 120; A.LR. 1962 Patna 403; AIR. 1962 (AP)72; A.I.R. 1965 (CaI)5l; 37 DLR (HCD) 296; PLD 1977 (Lahore) 418— Cited.

 

The Code of Civil Procedure, Order 21, Rule 42

Petitioners filed the aforesaid writ petition and obtained rule Nisi calling upon the respondents to show cause why the order dated 6.7.2008 attaching the property of the petitioners by the Artha Rin Adalat and the proceeding of the execution proceeding in Artha Rin Execution Case No. 471 of 2008 should not be declared without lawful authority on the following averments. S.Co. Power Plant Ltd VS. Government of Bangladesh (Md. Joynul Abedin J) (Civil) 7 ADC 299

Order XXI Rule 58 read with Order XXXVIII Rule 8

Attachment before judgment — Question of re-attachment after the decree is passed — As the application for attachment was filed before the decree was passed, there is no reason to hold that it is not maintainable aiter the decree was passed — An attachment before judgment cannot come to an end until it is set aside or the decree is satisfied.

Pubali Bank Limited Vs. Mohammad Miam and others, 7BLD (HCD) 41

Ref. AIR. l937(Patna) 245.

 

Order XXI Rules 58, 59, 60 and 61

Investigation of claims and, objections as to attachment property — Question of claim made by the garnishee before the executing Court — The Court in respect of such claims has to ask the parties to adduce evidence and be satisfied that the garishee was not possessing the property on account of the judgment-debtor.

Bangladesh Shipping Corporation Vs. Rafique Ahmed and another, 8BLD (HCD) 164

Ref 3BLD (AD)310: 15 Indian Appeals 123: I.L.R. 15 Cal 521 (P.C.)— Cited.

 

Order XXI Rule 58

Investigation of claims and objections to attachment of attached property -- Objection application before the executing Court being without jurisdiction is not maintainable.

It is only the High Court Division. namely, the winding up Court that has exclusive jurisdiction in this matter though under the provisions of the Code of Civil Procedure as under Order XXI rule 58 the objection or the claim need be agitated and decided by the Executing Court—It being an alternative remedy only the Court below rightly rejected the application under Order XXI Rule 58 of the Code of Civil Procedure as being without jurisdiction

Md. Ba1ui Ghani Vs. The Pioneer Bank Ltd. Cornilla (in flquidation). 1OBLD (HCD) 354

Ref. 1964 PLD at page 741 (Dhaka) J6DLR 656 — Cited.

Order XXI, rule 83(3)

It is admitted fact that the property in question has been mortgaged to the Bank. Sub- rule (3) of rule 83 of Order XXI of the Code stands as a legal bar to the private sale of the mortgaged property. 73 DLR 196

Order XXI Rules 85 and 86

Whether the Court can extend time for depositing balance of purchase money sold in auction beyond statutory period—A Court has no jurisdiction to extend period of 15 days fixed for depositing purchase money of a property sold in auction — The mandatory provision of Order XXI Rule 86 requires the Court to resell the property in case there is a failure to deposit the entire balance of the purchase money within 15 days which clearly indicates that the Court shall have no jurisdiction to extend the period — Court can extend time only when time is fixed by it for doing any act but not when time is fixed by-the statute — If the Court is allowed to have such jurisdiction to extend the time limit fixed by the statute then the statute will be defeated — An auction purchase automatically stands cancelled and the purchaser loses all his claims to auctioned property because of default in depositing the purchase money within the prescribed time.

Code of Civil Procedure, 1908 (V of 1908), S. 148.

Jamsheduddin Bhuiyaii Vs. Anwara Begum, 6BLD (HCD) 112

 

Order XXI, rule 90

The respondent No.1 Arab Bangladesh Bank Limited, as plaintiff, instituted Title Suit No.134 of 1995 before the Artha Rin Adalat No.2, Dhaka against the defendant Nos. 1 to 5 for realization of outstanding loan. That suit was subsequently renumbered as Title Suit No. 143 of 1998. The suit was ultimately decreed ex-parte vide judgment and de- cree dated 25.11.1998. Since the judgment debtor failed to pay the decretal amount within the prescribed time the decree holder bank put that decree into execution in Title Execution Case No.99 of 2000. Mrs. Jahanara Ahmed vs. Arab Bangladesh Bank Ltd (Nazmun   Ara Sultana J) (Civil) 9 ADC185

Order XXI Rule 90 read with sections 38, 42, 47, 151 C.P.C.

Property attached by the Company Judge — District Judge held auction on the direction of the Company Judge — District Judge is not competent to question the attachment and to set aside the auction sale.

The attachment -was made under orders of the Company Court and the sale was also held in pursuance of the direction of the Company Court — Under section 61 of the Banking - Companies Ordinance, 1961 the Company Court has exclusive jurisdiction to decide any claim by or against a Banking Company — Section 63 of the Ordinance empowers the - Court to entertain an-application even after the statutory period of limitation.

The executing Court was required to proceed taking the decree as a valid one and capable of execution — It was not open to the executing Court to decide whether the decree was a valid one or not — If there was a claim on the attachment property by any one, it is for the Court to investigate and decide the issue — The District Judge illegally questioned the attachment of the property by the High Court Division and acted beyond his jurisdiction ii setting aside the auction sale.

In re Kuinud Ranjan Sarker and others; 1BLD(HCD)251

Ref. I BLD96 — Cited.

Order XXI rule 99

Allowing the appeal granting temporary injunction reversing those dated 08.03.1990 passed by the Senior Assis- tant Judge, Sadar, Sylhet in Title Suit No.241 of 1989 refusing plaintiff's prayer for temporary injunction. Joirun- nessa vs. Abdul Matalib (Mohammad. Fazlul Karim J) (Civil) 8 ADC 302

 

Order 21 Rule 97, 98 and 99

The High Court Division rejecting an application for vacating the order of stay passed on 25.08.2005 and the order staying the proceeding of the execution case on 08.04.2006 which was extended lastly on 08.05.2006 by recalled and va- cated and directed the executing Court to proceed with the execution case in accordance with law. Jahanara Begum vs. Badura Begum (Mohammad Fazlul Karim J) (Civil) 6 ADC 197

Order XXI, Rules 89, 90 and 91- The judgment-debtor claims that the mortgaged property has been sold at a low price but he has not filed any application under Order 21 rule 90 of the Code of civil procedure which is the only forum to dispose of the said dispute. Thereafter the judgment-debtor filed the writ petition on 13th July, 2008. The High Court Division without issuing any rule made the impugned judgment on the basis of the oral submission made by the learned Counsel for the judgment-debtor that the judgment debtor was agreeable to pay the decreetal amount with interest. The judgment-debtor did not file any such application in the executing Court for payment of the decreetal amount nor did he approach the decree-holder to pay the decreetal amount by installments or to resolve the dispute by way of amicable settlement.

An amicable settlement for payment of outstanding dues under the Ain of 2003 can be effected in three stages of a proceedings; the first stage is provided in sections 21 and 22 which can be done at the pretrial stage and the procedure is provided in section 24; the second stage is under section 38 after passing a decree and during the pendency of the execution proceedings; and the last stage is under section 45, which enjoins a borrower or any other defaulter or a judgment-debtor to settle up the dispute at any stage of the proceedings. The judgment-debtor did not avail any of the privileges provided in the Ain, 2003. A privilege is a special right reserved to an individual person or a limited class of persons, bodies or institutions. But this privilege is lost once they infringe it or abandon it voluntarily.

Rules 89, 90 and 91 of Order 21 of the Code of Civil Procedure for setting aside a sale, those provisions of the Code are applicable in execution proceedings. Rule 90 provides for setting aside the sale on the ground of irregularity or fraud. If the act or omission complained of amounts to understatement of value of property calculated to mislead the bidder or the sale at a serious under value or where the contrary to the value of property given in sale proclamation, the Court wrongly mention higher value grounds on are which a sale may be vitiated by gross irregularities. ... Farid Uddin Mahmud VS Md. Saidur Rahman, [9 LM (AD) 247]

Order XXI, Rule 90- Auction sale- The impugned judgment and order affirming the order of the executing Court and the Appellate Court is set aside. The application filed by the judgment-debtor, the predecessor-in-interest of the appellants under Order XXI, rule 90 of the Code is allowed and the auction sale is set aside. Since the auction purchaser, respondent No.2 has been in possession of the auction sold property initially as a fvovwUqv and then as the so-called auction purchaser and as submitted by Mr Alam, respondent No.2 has not paid any rent for all these period, he needs not be paid any compensation or any solatium over the auction money deposited by him in Court. However, he is entitled to get back the money deposited by him as the auction purchaser. We direct the executing Court to hold fresh auction of the mortgaged property in due compliance with the provisions of law. ...Sardar Md Abdur Rahman =VS= Janata Bank Dhaka, [7 LM (AD) 318]

Order XXI, Rules 90 and 91- The petitioners did not deposit security equivalent to 25% of the decretal amount, their application was incompetent- The mortgaged property was sold in auction for the purpose of realization of the decretal amount. At this stage, the petitioners herein on 11.02.2010 filed an application under Order XXI, rules 90 and 91 of the Code and section 32 of the Ain, 2003 claiming the mortgaged property as their own and also asserting their possession therein. As no security equivalent to 25% of the decretal amount was deposited along with application, the Artha Rin Adalat rejected the same by its order dated 16.02.2010. Against this order, the petitioners filed the writ petition and obtained the Rule.

It appears that the learned Judges discharged the Rule on the findings, inter alia, that as the mortgaged property was sold in auction long before the filing of the application by the petitioners under section 32 of the Ain, 2003 and the sale certificate was issued long before the issuance of the Rule on 05.05.2002, the auction sale of the mortgaged property was thus made absolute before issuance of the Rule. So in the circumstances, there was no scope of giving any opportunity to the petitioners to raise any claim in respect of the mortgaged property in the execution case in question.

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 registered was on 22.03.2010, whereas the Rule in the writ petition was issued on 05.05.2010

We endorse the view of the High Court Division that "if the writ petitioner (sic, it would be petitioners) actually is the owner of the mortgaged property in question he can protect his right and title in that property by filing proper suit in a proper forum." The petition is dismissed. ...Mohammad Gias Uddin Chowdhury =VS= Ministry of Law, Justice & Parl. Afrs., BD, [8 LM (AD) 322]

Order XXI Rules 99 and 100 read with section 151

3rd party — any locus standi?

Dispossession by decree — holder— Whether Court’s inherent power can be invoked h a 3rd Party against apprehension of such dispossession — It is the duty of the executing Court to give delivery of possession of the decreetal property to the decree-holder The Court may pass necessary orders if it finds that the ascertainment of the suit property by local investigation is necessary in order to see that the decree of the Court is correctly executed —- It cannot pass such order on an application of a 3rd party who has no locus standi in law at this stage before being-evicted.

Saleh Ahined Vs. Md. Zakaria, 5BLD (HCD) 329

Ref. PLD 1959 Lah 511; 25 DLR 5: 29 DLR (SC) l85 —Cited.

 

Order XXI Rules 101 and 103

Proceeding for rest or at ion of possession -— When such proceeding is incompetent and question of’ inspection relating to possession unwarranted — The result of the proceeding relating to restoration possession claimed by one dispossessed in execution of a decree is subject to the result of the suit contemplated by the rule In the instant case the judgment of the suit has already been pronounced — The petitioner ha’ ing filed a petition for local inspection as to possession of the parties which having been already decided in the regular title suit and the Court having arrived at the conclusion that the petitioners were not in possession, the inspection asked for is unwarranted. Nasim Au and another Vs. Safina Bibi. 8BLD (HCD) 493 — Cited

 

Order XXI, Rule 103- Third party to file a suit to establish his right- The High Court Division has totally overlooked the applicability of Order 21 rule 103 of Code of Civil Procedure so far as it relates to the right of a third party in the property sold. Sub-section (1) of section 32 of the Ain does not debar the applicability of the provisions of the Code of Civil Procedure, if a third party makes an application for setting aside the sale. He can file objection against the sale in accordance with the provisions of the Code, but the scope of investigation being limited, we find no cogent ground to debar a third party to file a suit to establish his right or title if his right is fringed by reason of sale in view of order 21 rule 103. We hold the view that a suit for establishment of right, title and interest in respect of the mortgaged property by a third party is maintainable because there is no specific bar either expressly or impliedly in the Ain to file such suit. Sekandar (Md.) =VS= Janata Bank Ltd., [3 LM (AD) 448]

Order XXII RuIe 1 and 10

When not necessary?

Plaintiff suing to establish personal right to an office entitling him to possession of property ——- Right to sue does not survive on hi death — No substitution is necessary.

Md. Matlabur Rahman and others Vs. Madan Miah Chowdhury, IBLL) (AD) 252

Ref. AIR. 1950 Pat 184; 42 C.W. 1018— Cited.

 

Order XXII Rule 3

Abatement - Suit decreed — Appeal 5f defendant abates against heirs of some deceased plaintiff’s for non—substitution — S Appeal as a whole does not abate when there no possibility of conflicting decrees.

Bangladesh Vs. Wazuddin Hou’lader and others, 2BLD (AD) 179

 

 

Order XXII Rules 3, 4 and 8 read with section 47 C.P.C.

After execution no objection enter tamable— The Executing Court become functus—officio after execution of the decree The question whether a decree is void ab-initio having been passed against a dead person may be raised in a proceeding in execution since it is a question relating to execution of the decree— But this question cannot be raised after the decree has been executed After execution of’ the decree section 47 C.P.C. will not apply

-— There will then be no bar in filing of a sui for declaration of nullity of the decree on the ground of its having been passed against dead person.

Abdul Haki,n Vs. Goleda ih’guiit and another, 4BLD(AD)55

Ref. 18DLR535: AIR. 924 (PC) l9s: A.I.R.l928Mad 914; A;1.R.l923 Mad 2237 AIR. l93l Pat 57; AIR. 1936 Cal 540: I B.C.R. 236; 20 DLR 1050: 17 I.L.R. All 78:5 C.W.N. 627; AIR. 1935 al 645; AI.R 1929 Lah 121; AIR. 1939 Lah 405: 12 DLR631 —Cited.

 

Order XXII Rule 3 read with section 151 C.P.C.

Dismissal of suit for default after death of Plaintiff:

Whether the Court can dismiss a suit for default for non-appearance of the plaintiff after having knowledge about death of the sole plaintiff — Dismissal order is without jurisdiction — Court’s duty is to rectify it upon being pointed out — Court is to record the abatement of the suit over the fact of the death of the sole plaintiff is brought to the notice 1 the Court, the Court has no power and jurisdiction to lix the suit for peremptory hearing— The order of dismissal for default being holly without jurisdiction the Court should ate such order — The heirs and successors to the deceased plaintiff had time up to 90 days form the date of plaintiff’s death to substitute themselves as plaintiffs — Rules or Orders of Code dealing with the case of non-appeare of a suitor were inapplicable t a situation often the suitor is dead — Quite apart from section 1 5 1 C.P.C. the Court possesses an inherent power to rectify its mistake committed inadvertently.

Kamal Anwar and others Vs. Muhammad Kabir Khan, 5BLD (’HCD) 157-

Ref. I 1913) C.L.J.(PC)9 Cited.

 

Order XXII Rules 3 and 4

Substitution of the heirs of a deceased Party in a suit or proceeding

— Whether substitution allowed at one stage of the suit or proceeding will suffice or Fresh substitution is to be made in the main suit or proceeding Substitution of heirs of a party Suit in a revision arising from a miscellaneous case is a substitution for all stages of the proceeding or suit? When the 1rs of the deceased party were already substituted in the revision case further application for bringing the said heirs by way situation was superfluous and of no effect

Md. Matiur Rahinan Vs. Lalbanu &bi and others, 6BLD(HCD)432

Ref. 1LR45 Cal(P.C.)94 — Cited.

 

Order XXII Rules 3 and II

Substitution whether executrix under a will made by the deceased appellant can substitute in the appeal before probate of the will is obtained? —— In view of the provision of substitution and definition of legal repetitive in the Code of Civil Procedure the executrix of the will of the deceased ant is entitled to prosecute the appeal as substituted appellant in place of deceased appellant before she obtains probate of the will.

Subhira Nandi Majumder Vs. official Liquidator, Mahaluxini Bank Ltd. and others, 7BLD (HCD) 244

Ref. AIR. 1916 (PC) 202: AIR. 1962 (SC) 1471 — Cited.

 

Order XXII Rule 4

Abatement—A proceeding for grant of letters of administration on the basis of a will does not abate with the death of a person who appeared in the proceeding on general citation. Succession Act, 1925 (XXXIX of 1925). Ss. 276 and 283.

Jatish Chandra Saha and others Vs. Biswanath Saha and others, JBLD (AD) 216.

 

Order XXII Rules 3, 4 and 10

Abatement — A party dies after passing of the preliminary decree Suit not to abate for failure to substitute the heirs of the deceased party within the statutory period — Rule 10 of Order XXII governs the case.

Once preliminary decree is passed by a Court it has no jurisdiction either to pass tin order dismissing the suit Or to record that the suit has abated as the heirs of one or more of the original and necessary parties had not been substituted within the statutory period —-— after the passing of the preliminary decree right to sue’ in the plaintiff in respect of his original cause of action is settled and the suit cannot abate in terms of Rules 3 and 4 of Order XXII— Rules 3 and 4 of Order XXII are not, therefore. Applicable to cases of the kind under consideration but Rule 10 governs such cases.

Fakram Mai Vs. Ayechuddin and others, IBLD(1-ICD)233

Ref. A.I.R. 1924 (PC)198; AIR. I 928(Mad)9l 4; (1883)48 L.T.907: A.I.R. 1929 (Nag) 142:A.I.R. 1927 (Oudh) 156: AIR. I936(Cal)540; AIR. 1940 (Bom)3l 8: A.1.R.’ l948(Cal) 363; A.I.R. 1952 (Cal). 579; AIR. l93() (All) 779; AIR. 1933 (Cal )696: A.I.R. 193 l(All) 490—Cited.

 

Orde XXII, rule 3

The petitioners filed an application for recording an order of abatement of the suit on the ground that Md. Feroj Alam died long ago. The trial Court rejected their application on the reasoning that it was made for purpose of delaying the disposal of the suit. The petitioners, thereupon, unsuccessfully moved a re- vision petition in the High Court Divi- sion and then this petition for leave. Manjur Alam vs. Shah Alam Chowdhury (S.K. Sinha J) (Civil) 9 ADC 773

 

Order XXII Rule 4

Substitution of legal representatives — Whether substitution of the legal representative of the deceased respondent is necessary when such legal representative is already on record?— It is well settled that when a party respondent in appeal dies and one of his legal representatives is already on record in another capacity the appeal does not abate even though no application is made to bring him on record.

People’s Republic of Bangladesh. represented by the Deputy Coinmissioner, Faridpur Vs. Abul Kaiser Chowdhury and others, SBLD(AD) 273

Ref. A.l.R. 1971 (SC) 742: 8 DLR 349: 7 DLR 376 Cited.

 

Order XXII Rule 9

Application for substitution after statutory period

Application for substitution of the heirs of a deceased party to a suit or proceeding filed after the period of limitation whether can he treated as an application for substitution after setting aside abatement — An application for substitution of the legal heirs of the deceased party to a proceeding filed after the period of limitation without making any prayer for setting aside abatement is to he treated as an application for substitution of the heirs of deceased party concerned on setting aside abatement.

Md. Matiur Rahman Vs. Lal Banu  Bibi and others, 6BLD (HCD) 432

Ref. A.I.R. 1962 (Orissa) 94—Cited.

 

Order XXII Rule 9(2)(3)

Effect of abatement — When an abatement of a suit takes place owing to non— substitution of heirs, the defendants acquire a vested right not to be proceeded against in the suit The effect of abatement can be overcome only by satisfying the Court as to the cause preventing the plaintiff from continuing the suit which he is under a legal obligation to do when the cause is under challenge — It is never in the discretion of the Court to allow the application for substitution either in the interest of justice or of avoiding multiplicity of proceedings — The principle relating to addition of party cannot be applied in the facts and circumstances of the present case—Code of’ Civil Procedure. 1908 (V of 1908) Or I.R. 10.

Bhupati Biswas and others Vs. Niranjan Biswas and others, 9BLD (HCD) 355

Ref. 22DLR 500: AiR. 1940 (PC) 215

— Cited.

 

 

Order XXII Rule 9

Addition of party after abatement— Addition after abatement was recorded for non—substitution Addition of party If for any reason the heirs of a deceased cannot 1 substituted within time the Court may allow such heirs to be added as parties in the suit in the interest of justice—Code of Civil Procedure. 1908 (V of 1908). Order I. Rule 10.

Ujjal Hossain (Minor) and others Vs. Firoja Khatun and others, 9BLL) (HCD) 407

Ref. 22 DLR 500 —— Cited.

 

Order XXII Rule 10

Purchase during pendency of suit— The Court below found that on the basis of the transfer deeds from the- proforma defendants the plaintiffs of the present suit have no locus standi to bring the suit — Admittedly the plaintiffs purchased the suit property during the pendency of the mortgage suit and the having not got themselves impleaded in that suit as assignees of their vendor defendants under the provisions of Order XXII Rule 10 of the Code of Civil Procedure and contested the claim of defendant No. I, who was plaintiff in the mortgage suit,. -the impugned decree is binding upon the plaintiff-appellants — As such the plaintiff—appellants cannot challenge the impugned decree.

Haji Md. Ishaque and others Vs. Rupali Bank, 1IBLD(HCD) 489

 

Order XXIII Rule 1

Withdrawal of suit in absence of formal defect

In the absence of formal defect whether a suit can be withdrawn? Whether omission Ii make proper prayer in the plaint amounts h formal defect —— Plaintiff having confined his claim within the limited scope of injunction only cannot be allowed to withdraw the suit with permission to sue afresh on ground formal defect because this will not affect an suit of the petitioner or any claim or action ii that claim is otherwise not barred by law.

Tarani Bhushan Sainaddar Vs. Chitta Ranjait Nag and others, 5 BLD (HCD)128

 

Order XXIII Rule 1(2)

Permission to withdraw a suit

Circumstances in which application for such permission is rejected the learned Mun4 observed in his order that it was not specifically stated as to what the formal defects were and that the defects in the schedule and as to parties could be amended by filing a petition for amendment of the plaint It was also noticed that the suit was old one and no steps were taken to amend the plaint — It is clear that the discretion vested in the Court has been properly exercised.

Md. Badruddin Moral and others Vs. Santosh Kumar Sen and others, 8RLD (AD)) 121

 

Order XXIII Rule 1(4) read with Order I Rule 10

Transposition of a party — Transposition upon withdrawal from a suit — Position of a co—plaintiff wanting to withdraw

A co—plaintiff, if he has a separate cause of action and want to withdraw with liberty to sue afresh, consent of other co-plaintiffs is necessary — — In the case of absence of such liberty no consent is required but the withdrawing plaintiff needs to be transposed as a proforma— defendant in order to avoid the suit being dismissed for defect of parties.

Suresh Majumder and others Vs. Government of Bangladesh and others, 9RLD (HCD) 180

Ref. AIR. 1943 (Cal)427 -— Cited.

The Code of Civil Procedure, Order 23, Rule 1(2)

Seeking declaration of title in the suit property. withdrawal of the suit with a permission to sue afresh Grameen Telecom vs. Dr. Rowshan Alam(S.K. Sinha J) (Civil) 8 ADC 43

 

Order XXIII Rule 1

Withdrawal of suit — Ultimate effect of withdrawal — It means doing away with the entire proceed ng of the suit and the appeal if there had not been any such proceedings at all. Muhammad Abdul Quddus Vs Mohammad Mustafa Hossain,12 BLD(AD)131

 

Order XXIII, rule 1(3)-If the provisions of Order XXIII, rule 1(3) of the Code read with section 52 of the Transfer of Property Act be considered in juxtaposition with facts and circumstances of the case, our view is that it squarely attracts Order VII, rule 11(d) of the Code. Shuvash Chandra Dhar va Milon Chandra Banik @Dhar (Civil) 75 DLR (AD) 288

Order XXIII Rule 3

Compromises in revision

Parties can affect compromise in revision. A revisional application is a prescribed niode 01 step in the Code either in prosecution or in defence of an action and as such the procedure provided for in the Code shall also apply in civil revision including the provision of compromise on the strength of section 141 of the Code provided that the revisional application arises out of a suit, appeal or ordinal miscellaneous case or appeal there from to s which the procedure provided in the Code would apply

The Court for ends of justice may record compromise under section 151 of the Code where the provisional application having not arisen out of an original miscellaneous proceeding the provision of Order XXIII Rule 3 of the Code does not apply.

Serajul Mostafa Vs. Au Ahmed Sikder and others. 1BLD (HCD)) 80

Ref. AIR. 1949(Lah) 186; 18C.L.J. 14L AIR. I 949(Mad) 433 Cited.

 

 

Order XXIII Rule 3

Compromise decree containing matters extraneous to suit— Under Order XXIII Rule 3 of C.P.C. a compromise decree may contain matters extraneous to the subject- matter of the suit hut the compromise decree can only be enforced by way of execution in so far as it relates to the subject matter of the suit and nothing more. Pukul Molla Vs. Md. Akkel Au MondaI and others, 2BLD (HCD)42

 

Order XXIII, Rule 3- Compromise between the parties- The learned judges, just cannot act or be tuned on the submission of the learned Advocate of a party or fanciful wish of a party. Even in case of a compromise by the parties on the basis of joint application, the learned judges must see whether the terms of compromise entered into between the parties are lawful or not as provided in Order XXIII, rule 3 of the Code of Civil Procedure (the Code). Engineers Ltd. & others ....National VS= Jubak Housing & others, [1 LM (AD) 308]

Order XXIII Rule 3

Compromise decree passed in the absence of a party

A compromise decree passed in the absence of a party and without his knowledge, even though the learned Munsif assumed jurisdiction competently, cannot be allowed to stand, when the prejudice caused to the applcant is patent.

Mst. Rahela Khatun and others VS. Seraj Sarkar and at, other, 4BLD (HCL) 24

 

Order XXIII Rule 3

Compromise to be recorded—Decree only voidable and not void.

Compromise petition if found lawful must be recorded and the decree passed according to its terms — Compromise induced by fraudulent conduct between parties is voidable and not void --- compromise vitiated fraud can he set aside by a decree in a regular suit instituted for that purpose.

Amudi Mamud Vs. Elahi Baksha Sarker and others, 6BLD (HCD) 67

 

Order XXIII Rule 3

Compromise of suit — its validity

Question of its validity — when the compromise is found lawful there would be no option left to the. Court but to pass a decree in terms of compromise.

Abdul khaleque and others Vs. Siddiqur Rahman and others, 8BLD (HCD) 9

Ref. 1923 (Oudh) 252; 32 (Cal) 561: 1955 All l87(l).B.); 1933 Born..205—Ciied.

 

Order XXIII Rules 3

Right of appeal — Aggrieved partys right to take appeal from order of compromise

— The aggrieved party can take an appeal from such an order and a decree drawn from the order will be no bar to his right of appeal.

Abdul khaleque and otheks Vs. Siddiqur Rahman and others, 98W (HCD) 168

Ref. 1957 Pat..l43; 1933 Cal 94; 1936 Mad.358: l936Lah. 766; 1955 All 187: 1926 Cal. 412: 1933 Bom 205: 1929 Pat. 3l8: 1929

Cal 689 (RB.): 1944 Bom 239 (DB)— Cited.

 

Code of Civil Procedure [V of 19081

Order 23 Rule 1-Whether, before passing the order allowing the application to withdraw the suit with permission to sue afresh, it was necessary to record the statement of the plaintiff-respondent that there was formal defect in the plaint for which sho wanted to withdraw the suit.

The Appellate Division observed that in these two sub-rules, nothing has been said about the necessity of recording the statement of the plaintiff before according permission for withdrawing the suit eithe with permission to sue afresh or to withdraw a suit without permission to suc afresh. Only thing which has been provided in sub-rule (2) of rule 1 of Order XXIII is ma that in case of withdrawal of a suit with permission to sue afresh, the Court has to be satisfied that a suit must fail by reason of formal defect or that there are other sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject matter of a suit or part of a claim. The satisfaction of the Court as spoken about in sub-rule (2) is relatable only to the question, there was some formal defect in framing of the suit for which the suit shall fail or that there are other sufficient grounds allowing the plaintiff to institute a fresh suit for the subject matter of a suit or part of claim, so the question of recording the statement of the plaintiff to the above effect as found by the learned District Judge and the High Court Division would not arise at all. Md. Abdur Rahman Pramanik and others Vs. Most. Alefu Bewa and others (Civil) 15 ALR (AD) 211- 221

Order XXIII Rule 3

Order of compromise — Question of its validity — If a party to compromise denies having entered into the compromise the Court will have to come to a finding as to whether there had not been a compromise effected between the parties and to decide if the Compromise was lawful.

Abdul khaleque and others Vs. Siddiqur Rahman and others 9BLD (HCD) 168

Ref. AIR. 1923 (Oudh) 252: 32 Cal 561: 1955 All 187 (D.B.)-—Cited.

Order XXIII Rule 3 Compromise— Under the provisions of Order XXIII Rule 3 of the Code of Civil Procedure if the defendant can satisfy th Court that the claim in the suit has been adjusted or satisfied wholly or in part by any lawful agreement or compromise then the Court shall pass a decree. in terms of such compromise.

Haji Md. Ishaqae and others Vs. Rupali Bank, 11 BLD (HCL))489

 

Code of Civil Procedure (V of 1908) 

Order XXIII, rule 13

Since there is no permission to sue afresh, the suit filed by the plaintiffs claiming through the heirs of Mohammad Miah is hit by Order XXIII, rule 3 of the Code. The suit is not maintainable as filing of the subsequent suit, i.e. the instant suit on the self same cause of action, by the plaintiffs, is barred by law since the plaintiffs could not produce any paper that he took permission to sue afresh at the time of withdrawal of the earlier suit. ......(15) [74 DLR (AD) 74]

Code of Civil Procedure [V of 1908]

Order 23 Rule 4-The learned Advocate who filed the vokalatnama on behalf of the plaintiff-respondent was quite competent to file the application for withdrawal of the suit with permission to sue afresh and there was no necessity on the part of the plaintiff- respondent to sign the same.

The Appellate Division observed that a reading of sub-rules (1) and (2) of rule 4 shows that in order to act by an Advocate on behalf of a person a vokalatnama duly signed by him has to be filed and in the instant case as stated earlier the plaintiff- respondent did not deny the fact that she made appearance in Partition Appeal No. 13 of 1964 through the learned Advocate who filed the application for withdrawal of the suit and in Order XXIII, sub-rules (1) and (2) of rule 1, it has not been stated that the application for withdrawal of a suit either simpliciter or with permission to sue afresh has to be filed by the plaintiff himself(s). So, the learned Advocate who filed the vokalatnama on behalf of the plaintiff-respondent was quite competent to file the application for withdrawal of the suit with permission to sue afresh and there was no necessity on the part of the plaintiff-respondent to sign the same and the learned District Judge rightly acted on it. Md. Abdur Rahman Pramanik and others -Vs. Most. Alefa Bewa and others (Civil) 15 ALR (AD) 211-221

Order XXV Rule I

Security for costs from plaintiff- When can be ordered for? — Unless the Court arrives at findings that the plaintiff is its outside Bangladesh and, he does not pds.1ess sufficient immovable property. No order can be passed directing the plaintiff for famishing security for costs.

Ratan Kirshna Ghose and others Vs. Rafique Mia and others, 7BLD(HCD) 418.