Order XXI-
Executing Court's power-To ascertain value of the part of the judgmentdebtor's building, which fell in the saham of the plaintiff, so as to compensate him at the plaintiff's cost falls outside the power of the Executing Court and as such the order – appointing an Advocate Commissioner has been rightly set aside by the High Court Division.
Tahmina Khatun vs Nurun Nahar 40 DLR (AD) 255.
Order XXI rule 3(i)-
Prohibitory injunction -Whether executable-A decree for permanent injunction can be enforced for its violation by taking recourse to the provision of Order XXI rule 32(i) of the CPC and not by a fresh suit. For the reason of avoiding multiplicity of proceedings such a decree should be enforced without taking recourse to a separate suit.
Safar Ali Miah vs. Badsha @ Siddique 45 DLR 483.
Order XXI rule 15-
Even where the dispute regarding discharge, satisfaction and execution of a decree arises between decree-holders inter se the dispute can be determined by the executing Court and no separate suit is necessary.
Rabindra Narayan Gope vs Nani Gopal Gope 43 DLR 540.
Order XXI rule 16 and Order XXII rule 10 –
Assignment of interest-When the decree was not finally drawn up there could not be any lawful objection in filing an application under Order XXII rule. 10 of the Code. The Court failed to consider this material aspect that in the suit preliminary decree was drawn and the suit was not completely disposed of and before that stage application for assignment of shares was filed. The High Court Division misdirected itself in holding that the application was one under Order XXI rule 16 by which the question to be decided is whether the applicant is the person entitled to execute the decree but that stage did not reach till then.
Manik Chand Bibi vs Abdul Mutakabbir Chowdhury 44 DLR (AD) 251.
Order XXI rule 19-
Equitable set-off can be claimed in a case where cross-demands arise out of the same transaction as well as in cases where the cross-demands may not arise out of the same transaction but they are so connected in the nature of circumstances that it would be inequitable to allow one party to execute his decree driving the other party to separate suit or proceedings.
Shankar Lal Das vs Janata Bank and others 54 DLR 371.
Order XXI rule 26-
The petitioner being a third party to the decree has no locus standi to maintain an application for stay of the execution proceeding and then the facts do not warrant exercise of discretionary power of the court to make an order of stay.
Aftab Ahmed vs Moinuddin Zaigirdar and another 46 DLR 173.
Order XXI rule 26-
Execution of decree has no nexus with the contempt proceedings drawn for disobedience to the Court's order. Therefore there is no ground to continue the stay of execution of decree after disposal of appeal on the plea of pending contempt proceedings.
Calmare Navigation Co Ltd vs Mohammad Nurul Hoque and another 51 DLR (AD) 35.
Order XXI rule 26-
Pendency of suit for specific performance of contract is no ground to stay execution of a decree for ejectment from the self-same premises.
Hazera Khatun vs Dr Md Enayetullah 52 DLR (AD) 33.
Order XXI rule 26-
When the summonses were duly served and accepted by the trial Court the decree-holder should be allowed to enjoy the fruit of the decree and for filing a subsequent suit further proceeding of the execution case cannot be stayed.
Jabed Ali Sheikh (Md) and others vs Md Abdus Sobhan Sheikh and others 55 DLR (AD) 64.
Order XXI rule 29-
This provision of the Code applies only in case of a person who challenges the decree under execution in a subsequent suit.
Abdul Hakim (Md) vs Genandra Nath Bashu Roy 47 DLR (AD) 95.
Order XXI rule 29-
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.
Abul Kalam and others vs Kajiluddin and others 49 DLR 569.
Order XXI rule 29-
A tenant cannot be permitted during the continuance of the tenancy to resist a suit for eviction by his landlord without surrendering his possession to his landlord.
Monowara Begum vs Atiqullah 51 DLR 550.
Order XXI rule 29-
The plaintiff being a stranger to the previous decree, got no locus standi to maintain any application for stay of the execution proceeding of the previous suit.
Goranga Bishnupriya and others vs Aftal Khan and others 52 DLR 172.
Order XXI rule 29-
The Subordinate Judge in proceeding with the title Suit is not the court within the meaning of Order XXI, rule 29 of the Code. He acted beyond his jurisdiction in granting stay of further proceeding of the execution case pending before the Senior Assistant Judge.
Golam Rabbani Khandaker (Md) and others vs Hamida Bawa Shamsul Sheikh 53 DLR 610.
Order XXI rule 29-
Since the petitioners were not parties in the Partition Suit and their suit being not by the judgment debtor against the decree holder of the court that passed the decree in the partition suit, provision of Order XXI rule 29 of the Code cannot be availed of by the petitioners.
Abul Bashar and others vs Prafulla Kumar Das and others 56 DLR (AD) 139.
Order XXI rule 29 read with section 151-
An application for stay 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 51 DLR 425.
Order XXI rule 30-
After the Judgment debtors in their written objection admitted that they have no properties of their own to satisfy the decrees, civil imprisonment was the only method for enforcing decree of payment of money.
Pubali Bank vs Kalaroa Jee and Cold Storage Ltd Kalaroa and others 54 DLR 216.
Order XXI rule 32-
Prohibitory decree, violation of-When there is violation of a prohibitory decree there remains no decree to be enforced in the sense of execution-the violation is a fresh cause of action and the remedy lies in a separate suit.
Ajiran Nessa Bewa vs Abdul Mannan 45 DLR 66.
Order XXI rule 32-
Decree for injunction -The Deputy Commissioner and others got sufficient opportunity to obey the decree passed for permanent injunction. They having wilfully failed to obey the decree, action under Order XXI, rule 32 CPC is called for. Records be immediately sent down for implementing the judgment and to report compliance to the Registrar.
Selimuzzaman @ Selim and others vs DC, Sariatpur, District Sariatpur and others 44 DLR 545.
Order XXI rule 32-
Since an application under Order XXI rule 32 of the Code for violation of a decree for injunction is maintainable, the Single Bench decision holding that such an application is not maintainable has no force.
Zainal Abedin & another vs Md Abdur Rahim 53 DLR (AD) 69.
Order XXI rule 32(i)-
Detention of judgment-debtor-The Code authorises the Court to pass an order for detention of the judgmentdebtor to civil prison if he wilfully disobeys a decree for injunction. The provision obviously contemplates a valid decree. As the decree for injunction has been found to be illegal and the same has been set aside as being made in a suit barred by a statute the impugned order directing detention of the defendant in civil prison is not sustainable in law.
Mohammad Mofizuddin vs Mohammad Feroj Alam 44 DLR 36.
Order XXI rule 32(1)(2)A-
An enquiry on the truth or otherwise of the allegation of wilful disobedience or violation of injunction by the judgment-debtor is, essential before taking any punitive action against the delinquent.
Jiban Bima Corporation, vs Md Mohibul Majid and another 52 DLR 186.
Order XXI rule 32(5)-
There is no bar in law to execute the decree passed in a suit for specific performance of contract to put the decree holder in possession of the land or property decreed by the trial Court.
Kafiluddin vs Sukkur Ali Mia 50 DLR 208.
Order XXI rule 34—
Mandatory provisions of Order XXI, rule 34-When a draft document is placed before the Court it is a mandatory requirement of law that the court shall thereupon cause the draft document to be served on the judgment-debtor together with a notice requiring his objections, if any, to be made within a stated time. The judgment-debtor will have to state his objections, if any, within the stated time and the Court shall make such an order approving or altering the draft as it thinks fit. Thereafter the decree-holder shall deliver to the Court a copy of the draft with such alteration, if any, as they may have been directed upon proper stamp paper, if required. And the Judge shall then execute the document so delivered. This is, in short, the mandatory provision of Order XXI, rule 34 of the Code of Civil Procedure.
Effect of failure to give notice to the judgment-debtors and not causing service of draft to the judgment-debtors-Procedure illegal and unwarranted and the judgment-debtors were not in a position to say what objections they had to the draft.
Majeda Begum vs Khoda Box Mollah 41 DLR 392.
Order XXI rule 35-
Execution of decree in a case where legality of executing the interest of one of the decree-holders open to question Assuming that decree-holder Abdul Aziz was an Indian national and his interest in the decretal properties became vested property and as such the decree to the extent of his share cannot be executed, there is no reason why the decree to the extent of the shares of other decree holders cannot be executed. Orders of the Courts below are set aside and the case is sent back on remand to the executing court for fresh decision.
Tanjina Khatoon vs Nabaruddin 42 DLR 458.
Order XXI rule 35-
On close scrutiny of sub-rule (1) of Order XXI rule 35 of the Code, it appears to me that when a decree is passed for possession of any immovable property, the executing Court is duty bound to deliver possession to the decree-holder.
Mirza Abdul Bari Beg and others vs Zahidannessa and others 54 DLR 344.
Order XXI rules 35, 36, 97-100 and Section 151—
Decree for ejectment-Third party's locus standi-No inquiry into the title or possession of a third party is contemplated at his instance under rules 35, 36, 95 or 96 of Or. XXI when decreeholder or auction-purchaser applies for possession. When the decree-holder is met with obstruction in obtaining possession an option open to him is to apply under rule 97. An enquiry at the instance of a third party in possession is contemplated only under Order XXI r. 100 after he was dispossessed and not before. There being a remedy open to the third party by way of a separate suit, there was no room for exercise of the inherent power for adjudication of his claim of title or possession over the disputed property.
Haroon vs Sufia Khatun 44 DLR 63.
Order XXI rules 52 and 56-
The Governor of Bangladesh Bank is a Public Officer and as an authorised person is legally obliged to obey the direction of the Court for payment of the decretal amount out of the Consolidated Fund for the satisfaction of the decree and for such act no further instrument from the unwilling judgment debtor, the Ministry of Works of the Government of the People's Republic of Bangladesh is required.
Bangladesh Bank vs Mrs Rana Awan and others 46 DLR 678.
Order XXI rule 54-
In a pre-emption case when the case holding does not appear to be a mortgaged property or charged for mortgage sale, such holding even if sold in execution of any money decree, any alienation by the judgment debtor does not come within the purview of the doctrine of tis pendens in absence of the proof of service of notice under Order XXI, rule 54 of the Code upon the alienor or the alienee as the case may be.
Badiul Alam being dead his heir Fazlul Karim vs Md Nurul Islam 55 DLR 517.
Order XXI rule 58-
The Banking Companies Ordinance, 1962 made special provisions for banking companies when they are in liquidation and empowered the High Court Division exclusive jurisdiction to decide any claim by or against a banking company. Though this Ordinance is in addition and not in derogation of the Companies Act. or any other law for the time being in force, section 60 of the Banking Companies Ordinance by its non obstante clause made provision to prevail over the Companies Act, Civil Procedure Code or any other law for the time being in force.
Bazlul Ghani vs Pioneer Bank Ltd Comilla 42 DLR 480.
Order XXI rules 58, 59, 60 and 61-
The executing court under such circumstances has to follow the provisions of these rules and upon investigation either to disallow the claim of the garnishee (the appellant) or to order otherwise as deemed proper. The executing Court in these circumstances has to follow the provisions of Rules 58, 59, 60 and 61 of Order XXI CPC, make investigation of the claim referred to, or any objection made to the attachment of the money in question, ask the parties to adduce evidence and upon such investigation either disallow the claim of the garnishee that the money in question was, at the time it was attached, not in its possession on account of or in trust for the judgment-debtor (14)–It was the duty of the executing Court to ask this decree-holder to establish his claim by adducing evidence that the Bangladesh Shipping Corporation was holding the money on account of or in trust of the judgment-debtor Messrs Saturn Commercial Enterprise, Singapore and also to ask the garnishee to prove his claim.
It was thus the duty of the Executing Court in this case to ask the decree-holder to establish by adducing evidence that the Bangladesh Shipping Corporation was holding the money on account of Commercial Enterprise, Singapore and also to ask the garnishee to substantiate its objection.
Thus the court is of the view that the matter would be re-heard by the executing court where the contesting parties would establish their respective claims.
Accordingly, we are of the view that the executing Court should re-hear the application made by the appellant Bangladesh Shipping Corporation on 22-5-1986 giving opportunity to the decree-holder to controvert the assertion made by the appellant Bangladesh Shipping Corporation and also to give the decree-holder as well as the alleged garnishee Bangladesh Shipping Corporation an opportunity to establish their claim.
Bangladesh Shipping Corporation vs R Ahmed 40 DLR 36.
Order XXI rules 58-61-
Where a third party has claimed property under attachment in execution of a decree and filed an application under the aforesaid provision of law, then it is the duty of the court to investigate the claim and the executing Court should not reject the application without assigning any reason.
Foyez Ahmed and others vs Uttara Bank and others 55 DLR 635.
Order XXI rules 58-61-
The scope of enquiry under Order XXI rule 58 of the Code is very limited, which is confined to the question of possession. But such possession must be independent of the judgment debtor and not through the judgment debtor within the meaning of rule 61.
Yunus Mia (Md) and others vs Bangladesh Krishi Bank and ors 54 DLR 123.
Order XXI rules 60 and 61-
An order releasing a property from attachment as also an order disallowing a claim to attached property are now appealable after the amendment of 1983.
Bangladesh Shipping Corporation vs Rafique Ahmed 40 DLR 36.
Order XXI rules 61-
The claim that was disallowed under Order XXl, rule 61 is now not only appealable as stated above but also revisable under section 115(1) CPC.
Bangladesh Shipping Corporation vs Rafique Ahmed 40 DLR 36.
Order XXI rule 64 and Section 60-
Convenience andlor inconvenience of the judgment-debtor does not deserve any consideration in the attachment of his property to satisfy the decree.
Asmatunnessa Khatun vs Bangladesh 56 DLR 612.
Order XXI rule 66-
The proclamation contains neither full particulars of the nature of property nor the probable market price of the property. In the absence of such particulars, no valid order for proclamation for sale could be made.
Shankar Lal Das vs Janata Bank and others 54 DLR 371.
Order XXI rules 68 and 90-
Setting aside auction sale-the High Court Division upheld the sale only on the ground that the son of defendant No. 1 being heir of the judgment-debtor contested the suit and, as such, it must be presumed the son had knowledge of the execution case when he himself was a party in the execution proceeding. High Court Division failed to consider that the decree was put into execution for realisation of decretal costs and the main question was whether the auction sale was legally held and to these material questions no judicial mind was applied. Consequently the judgment is liable to be set aside.
Narayan Chandra Sil vs Manhar Mondal and others 43 DLR (AD) 152.
Order XXI rules 82-88—
It appears from a reading of sub-rule 3 of rule 83 that in case of execution of a decree for enforcement of a mortgage there is no scope for private sale, it must be sold by public auction.
Khorshed Alam (Md) vs Subordinate Judge & Artha Rin Adalat and others 54 DLR 239.
Order XXI rule 90-
Alleged trend in the publication and conduct of sale. The appellant could not prove by legal evidence that he could not file the application within time because of fraud or that his applications were within time from the date of his knowledge of such fraud. There was no error in rejecting the applications summarily.
Ahmed Meah vs Ejahar Meah 40 DLR (AD) 276.
Order XXI rule 90-
Auction sale having taken place and the sale having been confirmed the issuance of sale certificate in favour of the auction-purchaser cannot be withheld by parties not connected with the mortgage suit or the mortgage execution case.
ADC (Rev) and Assistant Custodian vs Tohidul Hossain Chy and others 51 DLR (AD) 117.
Order XXI rule 90-
Under section 5(4) of the Ain, Artha Rin Adalat is a Civil Court having all the powers and jurisdiction under the Civil Procedure Code subject to the provision of the Ain.
Antibiotic Stores and others vs Subordinate Judge and Artha Rin Adalat 55 DLR (AD) 13.
Order XXI rule 100-
A 3rd party may come into the picture in the execution case under provisions of Order XXI, rule l 00 when he is dispossessed from the decretal land. In a case like the present, inherent power under section 151 CPC not available. Remedy of a party like X when the holding is not the decretal land lies in a separate suit.
Saleh Ahmed vs Md Zakaria 37 DLR296.
Order XXI rule 100-
If the Court finds that the third party-opposite party is a transferee from the judgment debtor, he is not entitled to maintain application under rule 100 and his remedies are by way of suit under rule 103 to establish his right.
Sultan Mia (Md) vs Hazi Md Yusuf 53 DLR 555.
Order XXI rules 100 & 101-
The proceedings under the rules are no doubt summary in nature and the wrong done to a party by the executing Court at the instance of the decree holder without any fault of such party must be remedied by the executing Court.
Delwar Hossain Khan vs Alhaj Rustum Ali & others 54 DLR 328.
Order XXI rules 101 & 103-
The Court's direction restoring bonafide claimant to possession cannot be held back on the ground of institution of a suit claiming present possession of the property.
Abdul Kaiyum (Md) vs Krishnadhan Banik and others 49 DLR (AD) 140.
Order XXII rule 1-
If the heirs of a deceased for any reason cannot be substituted within time, the court may then allow the heirs to be added as parties.
Ujjol Hossain vs Firoja Khatun 41 DLR 481.
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 else complications shall follow.
Hossain (Md) and others vs Dildar Begum and others 55 DLR (AD) 60.
Order XXII rule 3-
Plaintiff dies-Suit thereupon dismissed for default-Substitution prayer by the legal representatives and the fact of plaintiff's death being brought to the notice of the court, the court cannot fix a date for hearing there being none to be heard so far as the plaintiff is concerned and court should allow the legal representatives of the dead plaintiff to apply to bring themselves on record in place of the dead plaintiff within 90 days' time as provided in Article 176 of the Limitation Act, Munsifs order dismissing the suit when it was called for hearing after the death of the plaintiff totally misconceived; he ought to have set aside the dismissal acting under section 151 CPC.
Kamal Anwar vs Kabir Khan 37 DLR 193.
Order XXII rule 3-
The learned Munsif should have accepted the application of the petitioners as basically an application under Order XXI, rule 3 CPC. He ought to have set aside his earlier order and should have restored the suit and after substituting the petitioners as plaintiffs should have proceeded with the trial therefor.
Kamal Anwar vs Kabir Khan 37 DLR 193.
Order XXII rule 3-
Substitution of the representatives of the deceased respondent when they are already on record in another capacity – No abatement.
People's Republic of Bangladesh, vs Abul Kaiser Chowdhury 37 DLR (AD) 85.
Order XXII rule 3-
A revision does not abate but at the same time when the sole petitioner in a revision dies and no step is taken for substitution of the heirs of the petitioner the revision cannot run.
Israil (Md) Hossain vs Shah Iqbal Agsan and others 48 DLR 173.
Order XXII rule 3-
The civil revision case having been disposed of two years back there remains nothing for recording an order of abatement in the case which was disposed of on merit by the High Court Division.
Monir Ahmed Fakir and others vs Abdul Jalil Munshi and others 50 DLR (AD) 198.
Order XXII rule 3-
Provision of section 152 is like the provision of section 151 CPC. It is a legislative recognition of the court's inherent power to correct its own fault.
Siddiqur Rahman (Md) and others vs Profulla Bala Devi & others 50 DLR (AD) 213.
Order XXII rule 3-
It is only when the interest of the plaintiffs is indivisible that a suit abates as a whole not being sustainable with respect to the rest of the plaintiffs.
Abdul Kader Mondal and others vs Shamsur Rahman Chowdhury 51 DLR (AD) 253.
Order XXII rules 3, 4, 11 and 12-
Abatement of appeal-whether appeal arising from an order in an execution proceeding abates with the death of a party to the appeal-There will be abatement of an appeal arising from a suit under the provisions of rules 3 & 4 of the Order. Since rule 11 does not refer to execution case or decree holder or judgment debtor rules 3 & 4 of the Order will not apply to an appeal from an order in execution proceeding and there will be no abatement of the appeal from an order in an execution case. An appeal from an order in an execution case is nothing but the continuation of the execution case and since rules 3 & 4 of the Order do not apply to execution case as provided under rule 12 of the Order such appeal cannot abate on the failure of the appellant to bring on record the heirs of the deceased respondent within the time prescribed by law. Procedural law cannot be interpreted to frustrate the fruits of the decree or order from being enjoyed by the successful party.
Tripura Modern Bank Ltd vs Sunil Kumar 43 DLR 460.
Order XXII rule 3(1)-
Proceeding as to tenancy-Substitution-Appellants have kept alive the issue of heritability of monthly tenancy in this appeal and while disposing of the appeal the Court will take note of its latest decision on the subject in 44 DLR (AD) 1 that a monthly tenancy is heritable. The view of the High Court Division that the appellants cannot claim substitution on the basis of the case reported in 32 DLR (AD) 171 is therefore no longer sustainable.
Sharifa Khatun vs Md Yusuf 44 DLR (AD) 285.
Order XXII rule 3(2)-
There is no merit in the contention that the case under Order IX rule 13 of the Code abates for non-substitution of the heirs of the deceased plaintiff.
Sharif Ullah Patwary and others vs Jharna Dhara Chowdhury and another 47 DLR 307.
Order XXII rule 4(3)-
The real test for determination as to whether an effective decree can be passed against a living person. In the frame of the present suit the question is whether the suit abates in its totality or not will depend upon nature of relief claimed in the suit.
Shafiul Alam Nizamee vs Karima Begum Hamidun Nessa 40DLR 422.
Order XXII rule 4(4)-
If a party to the suit dies, then either an application for substituting his heirs or an application seeking exemption in accordance with Order XXII, rule 4(4) of Civil Procedure Code has to be filed within 90 days. A plaintiff cannot get the exemption automatically without filing an application or a Court cannot exercise the power of exemption after the suit has abated. This is also the view of the Calcutta High Court in AIR 1957 (Cal) 12.
Hamidul Huq Chowdhury vs Amina Khatoon 47 DLR 446.
Order XXII rule 4(4)-
Under the law the heirs of a non contesting defendant need not be substituted.
Jalaluddin (Md) and others vs Laily Begum and others 48 DLR (AD) 163.
Order XXII rule 4(4)-
Since opposite parties were non-contesting and did not file any written objection till the date of final hearing, no substitution of their heirs is necessary as procedural law the Code of Civil Procedure will apply.
Jalal Uddin Ahmed (Md) and ors vs Delwar Hossain and ors 51 DLR 552.
Order XXII rule 9-
Addition of parties is permissible in respect of the representatives and heirs of persons relating to whom a suit had abated provided there were sufficient reasons for it. This is in the discretion of the judge for the purpose of giving effect to the right of the parties.
Moqbul Ahmed & others vs Shocb Chowdhury & others 44 DLR 156.
Order XXII rule 9-
A legal representative of a deceased party in a suit if brought on record by substitution in any ancillary or related proceeding arising out of the suit, the substitution of the party will hold good for the suit as well and no fresh application to bring the legal representative of the deceased party on the record of the suit would be necessary.
Akhtar Banu vs Habibunessa and others 48 DLR (AD) 164.
Order XXII rule 9-
Non-substitution of some of the heirs whose names could not be gathered in spite of due diligence or an heir not born at the time of substitution cannot make the decree ultimately passed in the suit illegal or void.
Harunur Rashid vs Zakiatunnessa Begum and others 47 DLR 580.
Order XXII rule 9-
The High Court Division erred in proceeding on the basis that on account of non-substitution of only one plaintiff the suit as a whole had abated and the revision had become infructuous. The suit being one for declaration of title the revision is required to be disposed of on merit by the High Court Division.
Nuruzzaman (Md) vs Moazzem Hossain and others 53 DLR (AD) 56.
Order XXII rule 9-
After recording and drawing up a preliminary decree in a suit for partition, there will be no abatement on the death ofa defendant and the legal heirs of the deceaseddefendant can be brought on record at any time for effecting proper allotment of shares.
Arabinda Das vs Sura Bala Das and others 53 DLR 97.
Order XXII rule 9(2)-
Prayer for setting aside an abatement order-Unless there is gross negligence, etc the expression "sufficient cause" may be liberally construed-If this abatement is not set aside the applicant is deprived of proving his claim-Court's power in dealing with such an application is discretionary, and Court when exercising it may afford to be liberal.
Azimunnessa vs Rup Gaji 39 DLR 6.
Order XXII rules 9(2)(3)-
Effect of abatement can be overcome only by fulfilling the provisions of Order XXII, rule 9(2) and (3) of the Code of Civil Procedure.
Bhupati Biswas vs Niranjan Biswas 40 DLR 517.
Order XXII rule 9(2)(3)-
Unless there is gross negligence and laches on the part of the applicant, the Court should liberally consider the prayer for setting aside abatement as an abatement deprives the applicant the opportunity of proving his claims.
Shakainath Mohanta vs Md Tatikuddin Mondal and others 52 DLR 541.
Order XXII rule 10—
A writ application has to abate as against the dead person. The question of substitution of the person dead at the time of institution of the writ application does not at all arise.
Bangladesh vs Sub-Judge 45 DLR 419.
Order XXII rule 10—
Assignment of interest-when the decree was not finally drawn up there could not be any lawful objection in filing an application under Order XXII r. 10 of the Code. The Court failed to consider this material aspect that in the suit preliminary decree was drawn and the suit was not completely disposed of and before that stage application for assignment of shares was filed. The High Court Division misdirected itself in holding that the application was one under Order XXI rule 16 by which the question to be decided is whether the applicant is the person entitled to execute the decree but that stage did not reach till then.
Manik Chand Bibi alias Rezian Nahar and another vs Abdul Mutakabbir Chowdhury 44 DLR (AD) 251.
Order XXII rule 10—
The court has ample power to treat an application filed under Order I rule 10 CPC as an application under Order XXII rule 10 CPC. Mentioning of a wrong provision of law is no ground for rejection of the application if the substance of the application discloses ingredients of passing appropriate order..
Abu Taher Bhuiyan vs Lal Mohan Mondal and others 54 DLR 604.