Code of
Civil Procedure, 1908
Section 137—
Subordinate
Court JanguageWhether the use of English language is prohibited–There is no
dispute that in the Bangla Bhasha Prochalan Aine there is no obstante
expression. The legislature is aware of the special law i.e. the Code of Civil
Procedure. If the legislature would have intended that section 3(1) of the Act
would override section 13 7 of the Code then the legislature would have
provided a nonobstante expression prohibiting the use of English language in
the subordinate civil Courts.
Hashmat ullah (Md) vs Azmiri Bibi 44 DLR 332.
Section 141—
Executing
proceedings under the provision of Code of Procedure will not apply to writ
proceedings.
Thus even if
it is presumed that section 141, CPC applies to the writ proceedings, there is
no conflict of decisions regarding the fact that the execution proceedings under
the Civil Procedure Code will not apply to the writ proceedings for execution
of the judgment passed in the writ proceedings.
Neerala Tea Estate vs Government of Bangladesh 41DLR90.
Section 141—
Even if
section 141 CPC is applied to writ proceedings, the matters concerning the
execution of decrees as provided in the CPC do not apply to writ proceedings.
It is enough
for the purposes of this application to say that following the decision in the
case of Thakur Prasad vs Fakirulla, ILR 17 Allahabad 106 (PC) it is
well-settled that the proceedings referred to in section 141 CPC do not include
execution proceedings under the Civil Procedure Code. Therefore, even if
section 141 CPC is applied to the writ proceedings, the matters concerning
execution of the decrees as provided in the Civil Procedure Code do not apply
to the writ proceedings.
Neerala Tea Estate vs Government of Bangladesh 41 DLR 90.
Section 141 –
In original
matter in the nature of suit like pre-emption proceeding the principle of Res judicata can have application
inasmuch as the order passed in such proceeding has the effect of decree.
Refazuddin Mondal vs Abdul Razzaque @ Rezaul Karim & others 43
DLR 644.
Section 141—
Section 141
CPC does not in terms apply to proceedings in writ. But the Court in its
discretion can apply the principles as distinguished from the technical
provisions of the CPC to meet the exigencies of the situation on the ground of
justice, equity and good conscience.
Moni Begum vs RAJUK 46 DLR (AD) 154.
Section 141—
Interrogatory
procedure applies in pre-emption proceeding in view of the provision in section
141 CPC.
Abdul Baten vs Abdul Latif Sheikh 45 DLR (AD) 26.
Section 141 & 144—
Proceedings
mentioned in section 141 refer to original cases in the nature of suits and not
other cases which do not originate in themselves. Proceeding under section 144
is not an original case wherein procedure in regard to suits as contained in
the CPC can be made applicable.
Ibrahim Munsi and others vs Tamizuddin Bhuyan 47 DLR 333.
Section 141 and Order IX, rule 9-
“Proceedings”
in section 141 of the Code includes original matters. Miscellaneous case under
Order IX rule 9 of the Code is not a proceeding within the meaning of section
141.
Almasuddin vs A Wadud Khan 42 DLR 391.
Section 141 & Order IX rule 9-
The Court
below committed no illegality in holding that the subsequent application under
Order IX rule 9 was not maintainable.
Alhaj Mokter Hussain Talukder vs Ainuddin Ahmed 45 DLR (AD) 37.
Section 141 & Order IX rule 13-
A defendant
may apply to the Court by which an ex parte decree was passed against him for
setting aside such decree on the ground of non-service of summons or
non-appearance for sufficient cause. In view of section I 41 of the Code, an
opposite party in an original miscellaneous proceeding may exercise the same
right.
Shah Alam (Md) vs Abul Kalam and others 54 DLR 276.
Section 144—
Phrase
“Varied or reversed” in section 144-This section does not provide for
an order of restitution to be made in any particular form or proceeding or by
any particular Court.
Atiar Rahman & others vs Mahatabuddin & others 40 DLR 496.
Sections 144 & 151—
The grant
ofrestitution is not discretionary with the court, but law imposes an
obligation on the party who gets the benefit of a varied or reversed decree to
make restitution to the other party for his loss.
Shahana Hossain vs AKM Asaduzzaman 47 DLR (AD) 155.
Section 146 & Order IX rule 13—
A legal
representative of a deceased defendant is entitled to file an application under
Order IX, rule 13 to set aside an ex parte decree irrespective of the fact as
to whether the deceased defendant had died before or after the ex parte decree
is passed.
Rahima Khatun vs Md Nurul Hoque & others 50 DLR 140.
Section 146 and Order IX, rule 9—
Proceedings by representatives-the appellants,
claiming under the plaintiff after his death, can apply for setting aside the
order of dismissal of the suit. In that view the Subordinate Judge was wrong in
holding that the appellants’ case for setting aside dismissal was not
maintainable.
Hazera Khatun vs Amulya Chandra Chaklader 42 DLR426.
Section 148—
Section 148
which provides for granting of time to do an act within a given time by the
Court has no application where direction to do an act is embodied in the
decree.
Abdul Hadi Bepari vs Safaruddin Mondal 38 DLR (AD) 265.
Section 148—
In a case
where a court passes a decree for specific performance of contract the court
retains the jurisdiction to extend time even though the decree contains a
clause that in default of the plaintiff to make the requisite payment within
the period fixed the suit shall stand dismissed.
Idris Shaikh vs Jilamon Bewa and others 50 DLR (AD) 161.
Section 148—
Where any
period is fixed by the Court for doing any act prescribed or allowed by the
Code, the Court may, in its discretion, enlarge the period even though the
period originally fixed or granted may have expired.
Wajeda Khatun and others vs Saonatun Bewa 55 DLR 460.
Sections 148 and 149—
No condition
precedent to an order of rejection of memo of appeal before making a final by
an appellate Court is contemplated in section 149 CPC.
Disrictt Primary Education Officer vs Jaynal Abedin 40 DLR 328.
Section 148 & Order VII rule 11—
The
enlargement of time contemplated under section 148 of the Code of Civil
Procedure and under section 6(2) of the Court-fees Act has no application in
the instant case where the statute fixed the period of time which a court can
give for compliance, imposing a positive bar against granting time exceeding 21
days as provided under rule 11 Order VII of the Code.
Abdul Aziz vs Tafazzal Hossain & another 50 DLR 487.
Section 151—
For disposal
of an appeal filed under the Local Government (Union Parishad) Ordinance, the
District Judge shall follow the procedure laid down in Civil Procedure Code.
Habibur Rahman Talukder vs Shaha Alam 37 DLR 71.
Section 151—
By virtue of
its inherent power the court will grant temporary injunction only when the
applicant can prove that he will suffer irreparable loss ifthe temporary
injunction prayed for is not granted.
Prof MA Raquib vs Prof Zillur Rahman 37 DLR 83.
Section 151—
Plaintiff
dies-Suit thereupon dismissed for default-Substitution prayer by the legal
representatives· and the fact of plaintiffs 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.
Section 151—
Order of
dismissal for default being an appealable order under Order XLIII, rule 1 (d),
the Court cannot interfere under section 151 CPC and pass an order restoring a
case to file.
Md M Hossain Mollah vs Asstt Dy Custodian 37 DLR 287.
Section 151—
A proceeding
under section 151 cannot be taken when there are other remedies available for
securing the redress.
A Motlib Chowdhury vs Minor Bapi 38 DLR 231.
Section 151—
Where due to
the Court’s or to Court’s Officer’s mistake an injury is caused to a party,
section 151 can be invoked for rectification of the mistake.
Md Bandi Ali Khan vs The Government of Bangladesh 38 DLR 258.
Section 151-
“Ends of
justice”-This expression ‘ends of justice’ used in section 151 of the Code
of Civil Procedure recognises wide powers inherently possessed by the Court to
do justice in a given case. From this, it must not be supposed that the Court
can, in disregard of the established principles and norms of law, make an
order.
Bangladesh Shilpa Bank vs Bangladesh Hotels 38 DLR (AD) 70.
Section 151-
Plaintiffs
case dismissed for non-compliance with Court’s order in not depositing the cost
to the defendants in time and the plaintiff files an application under section
151 CPC for setting aside the said order after depositing the cost-
Held : Case
can be restored by invoking section 151 CPC. Rafiqul Islam vs Abul Kalam 42 DLR
19.
Section
151-Application moved under Order IX, rule 9 with a prayer for condoning the
delay under section 151 in its filing-the court has the inherent power to grant
it for ends of justice.
Karamat Ali vs Ramizuddin Ahmed 39 DLR 336.
Section 151—
Inherent
power under section 151 cannot be invoked where specific provision has been
provided in the law that is, Order IX, rule 13-Where inadvertently the court by
mistake passes an order to the prejudice of a party, relief can be had under
section 151. The inherent power of the court cannot over-ride the express
provisions of the law-Code is exhaustive in respect of matters for which the
Code expressly provides.-If a party’s case is dismissed for its non-appearance,
he cannot base his case on the grounds provided in the Code for setting aside
the ex parte decree-inherent power under section 151, cannot in such case be
invoked.
Mayajan Bibi vs Monohar Ali 39 DLR 68.
Section 151—
In the main
suit, out of which the Civil Revision case arose, the deceased OP No. I’s name
was deleted and her heirs added as party but in the application under Section
115 CPC they were not made party due to bona fide mistake.
Held: To
secure ends of justice the High Court can under section 151 CPC add the heirs
of the deceased OP No. 1 in civil revision by deleting her name.
Dr Mohammad Golam Kibria vs Nurun Nahar Begum 41DLR143.
Section 151—
Court is not
to exercise power under section 151 CPC unless it is satisfied that it aims at
securing ends of justice.
Atiar Rahman & others vs Mahatabuddin & others 40 DLR 496.
Section 151—
Impugned
order or stay being non-speaking was passed arbitrarily.
Unfortunately,
the impugned order of stay being non speaking it is impossible to gather if
Subordinate Judge applied judicial mind to materials placed before him and was
satisfied that in the circumstances of the case stay of order needs to be
passed to secure ends of justice and to prevent abuse of process of court. So,
there is no escape from the finding that inherent power under section 151, CPC
was exercised by the Subordinate Judge, not on sound judicial principle rather
it was exercised arbitrarily.
Having
regard to the facts and circumstance of the case it cannot be said that the
stay order was passed by the Subordinate Judge to secure the ends of justice or
to prevent abuses of process of court. Rather impugned order aims at denying
justice to petitioners.
Atiar Rahman & others vs Mahatabuddin & others 40 DLR 496.
Section 151—
Wilful
concealment of a material fact on the part of the petitioners which tantamounts
to practising fraud upon court is sufficient ground to invoke the provision of
section 151 of the Code to set at naught the ex parte decree, even though there
is alternative remedy provided in the Code for setting aside ex parte decree
under Order IX, rule 13 CPC.
Mozaffar Ahmed vs M Saleh Ahmed 40 DLR 239.
Section 151—
Exercise of
discretionConflicting claims of the parties in the writ petition. High Court
Division which had granted the order of stay earlier vacated it on being
satisfied that it should be vacated … High Court Division has not made any
arbitrary exercise of power in vacating the order of stay.
Charandwip BKSS vs Deputy Commissioner Cox’s Bazar 40 DLR (AD)
213.
Section 151—
Analogous
hearing-Where parties in two suits are the same and the subjectmatter therein
are the same it is always convenient to get the suits heard by the same Court
before which they are pending in order to avoid. conflicting judgment.
Nurul Islam & others vs Noor Mohammad 44 DLR 29.
Section 151—
In cases of
fraud upon the Court, it may exercise inherent powers to set things right even
though there are alternative remedies open.
Shahr Banoo Mohsin Asgar and another vs Lailun Nahar Ershad and
others 44 DLR 552.
Section 151—
Fraud
vitiates the entire proceedings. It is the duty of the court to bury the suit
the moment fraud comes to its notice.
KM Sarwar Hossain vs Mosharraf Hossain and others 45 DLR 562.
Section 151—
Locus standi
to invoke Admiralty jurisdiction-Only the owner or consignee or assignee of the
bill of lading of any goods may claim damages against the owner, master or crew
of the ship. The plaintiff insurer having satisfied neither of these
descriptions they have no locus standi to invoke the jurisdiction of the
Admiralty Court.
Sadharan Bima Corporation vs Bangladesh Shipping Corporation 43
DLR 322.
Section 151—
Where a
mistake of a Court or Court’s officer causes some injustice to a particular
party, the power under section 151 of the Code can be exercised for the purpose
of giving necessary relief even though there is an alternative remedy for doing
the same.
Boynuddin vs Azimuddin 43 DLR 207.
Section 151—
Warrant to
arrest the defendant – As the suit is for determination of right to immovable
property, the Subordinate Judge had no jurisdiction to pass the order of arrest
of the defendant nor such an order could be passed in exercise of the Court’s
inherent jurisdiction.
Mosharraf Hossain Mia vs Mst. Hasina Begum 43 DLR 254.
Section 151—
The inherent
power of the Subordinate Judge cannot extend to interference with the order of
temporary injunction passed by the Appellate Court. The Subordinate Judge has
no jurisdiction to change or sit on the order passed by the District Judge in
exercise of the inherent power under section 151 of the Code.
Repco Laboratories Ltd vs NuruddinAhmed 43 DLR 123.
Section 151—
lnherent
power-Where the Court itself passed a wrong order the Court is competent to
rectify such order in exercise of its inherent power.
Atash Ali vs Rebati Mohan Sarker 43 DLR 539.
Section 151—
An order
passed by an inferior court during the subsistence of a stay order made by a
superior Court is a nullity.
BTTB vs Lithi Enterprise 46 DLR 122.
Section 151—
Order having
been passed in the absence of the plaintiff and the trial Court having not
rejected the plaintiff’s plea that the case records remained untraced for some
time, restoration of the suit in exercise of inherent power was not
unjustified.
Shahabuddin vs Abu Sayed 45 DLR (AD) 22.
Section 151—
An order
made under this section is not open to appeal, though it is revisable by the
High Court Division under certain circumstances.
Yusuf vs Moftal Ahmed Sowdagar 45 DLR (AD) 178.
Section 151—
Maintainability
of application under section 151 CPC for setting aside an order cancelling an
earlier order dismissing a Miscellaneous Case under Order IX rule 13. The
effect of an order of dismissal of the Miscellaneous case for default is one of
rejecting an application to set aside a decree passed ex parte. It is not an
order passed on merit, but ex parte. The view taken by the High Court Division
that appeal lies in both cases is correct. This is not to say that the
application under section 151 CPC is barred under all circumstances. Since the
application under section 151 in the present case was filed 7 days after
dismissal of the miscellaneous case for default without any explanation for
tfie delay, such application could not be justified.
Abdul Kader Chowdhury vs Nurul Islam 43 DLR (AD) 128.
Section 151—
There is
nothing restricting the Court’s power to apply a provision of the CPC in a writ
case when the court thinks it necessary to do so to prevent injustice.
Raufique (Md) Hossain vs Speaker, Bangladesh Parliament and others
361.
Section 151—
Section 151
CPC undoubtedly lengthens the hands of the court to pass any order to do
justice when there is no other remedy open to the really aggrieved litigant.
Abu Sama vs Abu Syed and others 48 DLR 141.
Section 151—
Order of
injunction passed in exercise of inherent jurisdiction against prosecution of
execution case to do ex debito justitiae. not to be interfered.
Sarada Bala Sen vs Sheikh (Md) and others 48 DLR 239.
Section 151—
Only for the
ends of justice the discretion under this section cannot be exercised, but when
there is mistake of the court itself, it can be.
Abdul Quddus vs Mobarak Hossain 48 DLR 572.
Section 151—
ln an
appropriate case even if an application for injunction does not come within the
ambit of Order XXXIX rules 1 and 2, the court in the interest of justice can
invoke inherent jurisdiction and grant an injunction under section 151 of the
Code.
Sarhind Garments Ltd vs Glory Truth Industries Ltd and another 49
DLR 260.
Section 151-
Where an
alternative remedy is open to vindicate grievance before criminal court or
civil court the inherent jurisdiction of the High Court Division cannot be
invoked on the plea of “ends of justice”.
Ferdousy Begum (Doti) vs Maheia Khatoon and others 49 DLR 313.
Section 151-
When the
suit has been finally disposed of, with the signing and sealing of the final
decree, there cannot be any petition under section 151 of the Code and the
decree cannot be interfered with.
Sabirannessa and others vs.
Kabir Ahmed and others 49 DLR 347
Section 151-
Even after
the passing of the decree, the court can entertain an application under section
151 of the Code in an appropriate case where fraud was practised upon the court
and in such case the question of becoming functus officio after the
pronouncement of judgment and signing a decree does not arise.
Abdus Sattar Khondker and others vs Premlata 49 DLR 583.
Section 151-
Availability
of an alternative remedy under other provisions of the Code does not always
stand in the way of exercise of the inherent power of the Court for doing evenhanded
justice for which alone the Court exists.
Abdul Mannan Sikder vs Matilal Dhupi and others 50 DLR 403.
Section 151-
The Adalat
Ain is a special legislation setting up Special Courts for prompt realisation
of loans by financial institutions. Such a Court is a civil Court only for
limited purposes. A revisional application under section 151 of the Code
against any interlocutory order passed by an Artha Rin Adalat is not
maintainable in law.
Belayet Hossain vs Bank Indosuez 50 DLR 431.
Section 151-
A discretion
having been exercised for restoration of the suit dismissed for default, the
High Court Division committed no illegality in affirming the order passed by
the trial court in exercise of power under section 151 of the Code.
Abdul Quddus vs Md Mobarak Hossain 51 DLR (AD) 54.
Section 151-
A Court
cannot remain silent about the sufferings of a party for no fault of its own by
not resorting to the exercise of the inherent power under section 151 of the
Code.
Mizanur Rahman Khan (Md) and another vs Jinnatul Ferdous and
others 51DLR493.
Section 151-
When a
subordinate Court invokes its inherent jurisdiction for reasons recorded to
grant a chance of hearing to a party for ends of justice by recalling its own
order and such order being not in excess of its jurisdiction, this Court will
be reluctant to interfere with such order.
Osman Ali (Md) vs Md Makbul Hossain and others 52 DLR 109.
Section 151-
After a
decree has been executed and fully satisfied there remains nothing more for the
Execution Court to do.
Harun-orRashid and others vs Quyum Khan and others 52 DLR 150.
Section 151-
High Court
Rules, Chap XThe ground as to Court’s failure to record satisfaction about the
reason for absence of the Advocate when the case was called for hearing is too technical
to deny the absentee opposite parties rehearing of
the civil revision.
Hasan Azam and others vs Rabeya Khatun and
others 53 DLR (AD) 87.
Section 151-
If
an order is obtained through misrepresentation and fraud upon the court , in
the exercise of its inherent power this court can set things right, even suo
motu, if it comes to the notice of the court.
Abul Kashem
vs Executive Engineer & others 53 DLR 186.
Section 151-
The
order passed by the court, was a wrong one but for that matter the same court
cannot sit over its own judgment in the facts of the present case.
Khorshed
Alam (Md) vs Subordinate Judge & Artha Rin Adalat and others 54 DLR 239.
Section 151-
By
inherent power of the court and on revision the order was set aside by the High
Court Division and the Appellate Division upheld the decision holding that such
inherent power cannot be exercised while acting under specific provision of the
Act governing the disposal of the case.
Pubali Bank
Ltd vs Mazid and Co and others 54 DLR 340
Section 151-
Although
no revisional application was filed before this court against an order that was
not appealable or an order passed on an application under section 151,
following the principle of substantial justice this court can interfere and
correct the error committed by the subordinate judge.
Makbul Ahmed
and others vs Mohammedullah and others 54 DLR 399.
Section 151-
A
Subordinate Judge has got no jurisdiction to invoke any power under section 151
of the Code in the proceedings of a title suit either to grant stay or
injunction in respect of a family suit of a Family Court.
Shafiqul Huq
(Md) vs Mina Begum 54 DLR 481.
Section 151-
When
an order is passed by a Court on being misled or due to its own mistake such
issues cannot be raised or decided in appeal or review. A Court of law is
obliged to correct the mistake when true facts are brought before it and make
such order as necessary for ends of justice. The Court must not allow its
process to be abused by any unscrupulous person.
MA Kabir Chowdhury
vs MM Rahman Miah 54 DLR 485.
Section 151-
Any
order passed by a Tribunal on fraudulent misapprehension or undue influence has
no legal effect and the Court or Tribunal does not become functus officio with
the passing of the order so as to recall it.
Government
of Bangladesh and another vs MA Khair Bhuiyan 55 DLR (AD) 76.
Section 151-
When
an application under Order IX rule 9 of the Code is dismissed for default, it
is an appealable order but when the case is dismissed not for a default but for
non-payment of cost, then the order can be set aside by invoking section 151 of
the Code on acceptance of the costs subsequently.
Wajeda
Khatun and others vs Saonatun Bewa 55 DLR 460.
Section 151-
In
an appropriate case the Court may, in exercise of its inherent jurisdiction,
reject the plaint of a suit if the suit is not maintainable.
Principal,
Barguna Darul Ulum Nesaria Alia Madrasha vs Secretary, Ministry of Health &
ors 55 DLR 542.
Sections 151
& IO-
Analogous
Trial- The principle of consolidation of suits for trial implies that
similarity or identity of the matter in issue in different suits by the same
party should be decided by the court once and for all. The object of
consolidation is to avoid multiplicity of litigations between the same parties
whenever the matter in issue is substantially or directly the same. The
principle of consolidation in no way conflicts with the purpose of section 10
CPC, on the contrary it preserves and promotes it.
Rezaul Karim
vs Jahanara Begum 44 DLR 508.
Section 151
& 115-
Re-opening
of a Revision matter-There is no provision in the Code for rehearing of
Revision case and reviewing of judgment once delivered by the High Court
Division on merits. The Court cannot set aside its own order passed on merits
unless the Court has jurisdiction to do so. The kind of order sought for may be
passed if it is necessary for the ends of justice so long as the High Court
Division is seized of the matter, but not when its jurisdiction and power have
ceased after the disposal of the matter on merit.
Buddhi
Sankar Biswas vs Akbar Ali Sheikh 44 DLR 242.
Sections 151
& 153–
Section
151 of the Code of Civil Procedure providing inherent power of the Court read
with section 153 provides general power to amend any defect or error in any
proceeding of the suit and for determining the real question or issue raised.
University
of Dhaka represented by its Vice Chancellor vs Associated Engineering and
Drillers 56 DLR (AD) 103
Section 151
and Order VII rule 11-
Rejection
of plaint-the suit was filed with positive averments regarding the cause of
action which was in existence at the time of filing the suit and the plaint
suffered from no laches or defects and it could not be said that the cause of
action which was there at the time of filing the suit ceased to exist due to
the circular issued by the Bangladesh Bank as it had created no embargo for the
suit. There being no inherent defect on the face of the record rejection of
plaint by invoking court’s inherent power was also not called for.
MM Jute
Exporter vs Pubali Bank 42 DLR 500.
Section 151
& Order VII rule II-
The
plea of implied bar should ordinarily be decided on evidence unless the facts
disclosed in the plaint clearly prove that the suit was not maintainable. A
resort to section 151 of the Code may be made in an exceptional case.
Guiness Peat
(Trading) Ltd vs Fazlur Rahman 44 DLR (AD) 242.
Section 151
& Order VII rule II-
Although
rejection of the plaint was prayed for, the plaint is returned to the filing
advocate in exercise of inherent power as the Admiralty Court lacks
jurisdiction and the plaint cannot be rejected by such a court, the provision
for rejection of plaint having not been made applicable under the rule of the
Admiralty Court.
Madina
Vegetable and Oil Refinery Industries (Private) Limited vs MT Dolores. 45 DLR
740.
Section 151
and Order IX, rule 13-
Ex
parte decree-Assistant Judge set aside the ex parte decree not upon grounds
available under Order IX, rule 13 CPC but by taking resort to the inherent
power of the Court under section 151 CPC-He cannot draw upon inherent power
while acting under a specific provision of the Act governing the disposal of
the case. Even though the learned Assistant Judge has not come to any definite
finding as to the service of summons upon the appellant and having regard to
all the facts noticed and observation made, there is no necessity for further
determination of the question of the service of summons upon the appellantThe
order of the learned Assistant Judge has rightly been set aside by the High
Court Division-Appeal dismissed.
Reazul Hoque
Molla vs Ajizullah Mollah 42 DLR (AD) 74.
Section 151,
Order IX rule 13 & Order XLIII, rule (d)-
If
an application under Order IX rule 13 is dismissed for non-appearance of the
petitioner this becomes an appealable order but when the dismissal is for the
mistake done by the court’s official the trial Court may by invoking the power
under section 151 restore the case to its file and number to do complete
justice and thereby to save the parties from further litigation and in such a
case the question of limitation is immaterial.
Gazi Tayebur
Rahman vs Saikh Md Ali and others 55 DLR 29.
Section 151
&. Order XIV Rule 2-
The
plaintiff may take recourse to section 151 for rejection of the set-off,
alternatively he may bring the maintainability of the set-off as an issue oflaw
to be decided first.
Sultana Jute
Mills Ltd vs Agrani Bank 46 DLR (AD) 174.
Section 151
& 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.
The
petitioner thereafter made no effort to get the revisional application heard.
He filed a fresh petition before the executing court and renewed his prayer for
stay -of the execution proceeding. By the impugned order dated 15-5-90 the
executing court rejected the said application on the view that it was no longer
open to the petitioner to maintain a fresh application for stay on the selfsame
facts.
Aftab Ahmed
vs Moinuddin Zaigirdar 46 DLR 173.
Section 151
& Order XXI rules 35, 36, 97- 100-
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 Order 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 rule 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.
Section 151
& Order XXIX rules 1, 2-
A
licence which is by nature revocable cannot be specifically enforced and in a
case relating to a contract which cannot be specifically enforced no injunction
could be allowed.
Ministry of
Communication, Railway Division, People’s Republic of Bangladesh and others vs
Md Ferozur Rahman & others 45 DLR 762.
Section 151,
Order XXXIX rule 1-
Though
the appeal of the writ-petitioner was dismissed but the ad-interim order of
injunction passed during the pendency of the appeal was a valid order required
to be complied with-Writ-respondent not having complied with the same, the writpetitioner
was entitled to restoration as ordered.
Government
of the People’s Republic of Bangladesh and another vs Md Shamsul Haque and anr
56 DLR (AD) 101.
Section 151
& Order XLI rule 19-
Inherent
power of the court cannot be invoked to enable the court to break through clear
provision of the Limitation Act.
Sufia Khatun
and others vs Abdul Majid and others 45 DLR 584.
Section 151
and Order IX, rules 6, 7 and 13 –
When
the ex parte hearing is completed, the defendant has no right of hearing.
Earlier application under Order IX, rule 7 CPC cannot be entertained under
section 151 CPC. The court’s finding on the ilIness of appellant did not
operate as res judicata and the trial Court was directed to consider the
appellant’s application under Order IX, rule 13.
KDH
Laboratories Ltd vs Pubali Bank 40 DLR 1.
Section 151
and Order 9, rule 13-
Ex
parte decree-Assistant Judge set aside the ex parte decree not upon grounds
available under Order IX, rule 13 CPC but by taking resort to the inherent
power of the Court under section 151 CPC-He cannot draw upon inherent power
while acting under a specific provision of the Act governing the disposal of
the case.
Reazul Hoque
Molla vs Afzullah Mollah 42 DLR (AD) 74.
Section 151
and Order XXXIX, rule 1-
An
election tribunal is a Civil Court so far as it relates to trial of election
petition. But it has no jurisdiction to grant ad-interim or temporary
injunction restraining the elected chairman from taking oath or assuming office
as temporary injunction does not relate to trial of election petition.
Md Shahidul
Islam vs Election Tribunal 40 DLR 500.
Section 151
and Order XLI, rule 19-
Court
of the district Judge whether a Family Court under section 17(1) of the
Ordinance an appeal shall lie from a judgment, decree or order of Family Court
to “the Court of the District Judge”. The latter being a Civil Court,
provisions of the Code of Civil Procedure would apply to the proceeding before
it. There is no scope for thinking that the District Judge referred to in the
Ordinance is a persona designata or a Family Court and that provisions of Order
XLI rule 19 were not applicable to proceeding arising out of Family Court
judgment.
Md Moinuddin
vs Amin Khan Majlish 42 DLR 483.
Section 151
& Order VII rule 11-
Apart
from the question of Order VII, rule 11 of the Code the Court can also exercise
its inherent power in order to stop harassing the other party again. Since the
decree passed by the trial Court in the earlier suit had already merged into
the decree of the Appellate Division such a decree cannot be challenged before
the trial Court.
Islami Bank
Bangladesh Ltd and others vs Abdul Jalii and others 53 DLR 29.
Section 151
& Order XXI rules 100, 101 & 103-
Inquiry
contemplated under rule 100 is restricted to the question of possession only
and even though the applicant may not have good title to the property, if he
can show that he was not in possession on behalf of the judgment debtor but on
his own account, he must be put in possession under rule 101 CPC.
Sultan Mia
(Md) vs Hazi Md Yusuf 53 DLR 555.
Section 151
& Order XXI rules 100 & 101-
In
this case question of exercise of power under section 151 does not arise as the
opposite party made the application under rule 101 of Order XXL.
Sultan Mia
(Md) vs Hazi Md Yusuf 53 DLR 555.
Section 151
& Order XXIl, rule 3-
Where
mistake has been committed by the Court by dismissing the suit for default it
could rectify the mistake and at least could pass an order of abatement of the
suit for non-substitution within time instead of passing the order of dismissal
for default, in the facts of the case.
Afitan Nessa
and others vs Government of the People’s Republic of Bangladesh and ors 53 DLR
502.
Section 151
Order XXXIX rules 1 & 2-
Mandatory
injunction can only be passed by a Court in the exercise of its inherent
jurisdiction. Provisions of Order XX.XIX rules 1 or 2 of the Code do not
empower a Court to make such order.
Fulbaria
Adarsha Market Dokandar Malik Samity vs Fulbaria Adarsha Market Khatigrashta
Dokandar Kallyan Samabaya Samity & others 53 DLR 220.
Section 151
& Order VII rule II –
Since
it is found that amount claimed by the plaintiff is not loan (i.e) within the
meaning of section 2(Kha) of the Act in spite of the fact that plaintiff is a
financial institution within the meaning of secion 2(Kha) of the said Act.
Artha Rin Adalat has no jurisdiction to entertain and dispose of such a suit
and, as such, Court below acted illegally in passing the impugned order
refusing to reject the plaint. But the suit as filed before Artha Rin Adalat is
triable by a civil Court having jurisdiction in the matter. In such
circumstances Artha Rin Adalat ought to have returned the plaint to the
plaintiff for presentation before the proper Court.
Eastern Bank
Ltd. vs Subordinate Judge and another 49 DLR 531.
Section 151
& Order IX rule 13-
Remedies
against an ex parte decree under the Act is either by an application or by an
appeal and the requirement in both the cases being deposit of 50% of the
decretal amount-There is no shortcut by invoking section 151 even on ground of
fraud.
Nur Islam
(Md) vs Agrani Bank 49 DLR (AD) 135.
Section 151
and Order XXIII rule 1 and Order XLVII rule I-
Application
though filed under section 151 CPC is sent back to the District judge for
reconsideration of the merits thereof and permitting the plaintiff to sue
afresh.
Misir Ullah
(Md) vs Syed Khalilullah Malek and others 48 DLR 117.
Section 151,
Order XXXIX rule 1-
Though
the appeal of the writ-petitioner was dismissed but the ad-interim order of
injunction passed during the pendency of the appeal was a valid order required
to be complied with-Writ-respondent not having complied with the same, the writpetitioner
was entitled to restoration as ordered.
Government
of the People’s Republic of Bangladesh and another vs Md Shamsul Haque and anr
46 DLR (AD) 101.
Section 151
& Order XXXIX rules 1&2-
The
Court, in an appropriate case, in exercise of its inherent power, require the
offending party, by issuing a temporary injunction in mandatory form, to
restore the status quo ante.
Babul Kanti
Das and others vs Abul Hashem and others 47 DLR (AD) 6.
Section 151
& Order XLI rules 23 & 25-
If
a case does not come under Order XLI rule 23 or rule 25 but the court thinks
that the case should be remanded for ends of justice, it can remand it in the
exercise of its inherent power in the absence of any provisions in the Code.
Abdul Aziz
and others vs Sahajuddin Mollah and others 48 DLR 164.
Section 151
& Order LXI rule 23-
It
baffles understanding how the Judges of the High Court Division could justify
the ends of justice in passing the order of remand in the face of the glaring
laches and conscious machination of the defendant to procrastinate the
litigation.
Khairunnessa
being dead her heirs Feroz Alam and others vs Zobaida Nahar @ Zharna &
others 49 DLR (AD) 77.
Section 152-
Any
mistake in drawing up preliminary decree-whereby a property which as the
judgment makes clear, was excluded from the category of suit land can be
corrected under section 152 even though the preliminary decree was allowed to
stand.
Ismailullah
vs Sukumar Chandra Das 38 DLR (AD) 125.
Section 152-
Court
by taking resort to section 152 CPC can amend decree to conform to the judgment
at any time axnd there is no time limit to such amendment.
Ismailullah
vs Sukumar Chandra Das 38 DLR (AD) 125.
Section 152-
The
decree may be amended if it is not in conformity with the judgment.
We
hold that the trial Court committed illegality and wrong in not exercising the
jurisdiction vested in it under section 152 of the Code of Civil Procedure and
correct the mistake which occurred due to accidental slip or omission and we
are inclined to make the Rule absolute.
IDLC vs Reza
Biscuit & Bread Co Ltd 46 DLR 199.
Section 152-
The
scope and purpose of this section are very limited. The decision on a
successful application under this section cannot materially affect the decree.
Bangladesh
vs Luxmi Bibi 46 DLR (AD) 158.
Section 152-
By
filing an application for correction the statutory period for filing an appeal
against the decree cannot be got extended.
Bangladesh
vs Luxmi Bibi 46 DLR (AD) 158.
Section 152-
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 Profalla Bala Devi & others 50 DLR (AD) 213.
Section 152-
Section
152 of the Code contemplates amendment of decree in respect of any clerical or
arithmetical mistake, it does not contemplate amendment of a substantial
nature.
Abdul Motaleb
and others vs Shahed Ali and others 47 DLR (AD) 9.
Section 152-
There
being no question of limitation under section 152 of the Code of Civil
Procedure, the application for correction of the mistake in the schedule of the
plaint and the resulting mistake in the decree may be allowed.
Chand Mia
and others vs MA Rajput Ghosh Bahadur and others 56 DLR 221.
Section 152,
Order XX rule 3 & Order XLVII rule 1-
The
judgment which has been orally dictated in the Court can be completely changed
before it is signed and sealed provided notice is given to all parties
concerned and they are heard.
Abdur Rashid
vs Santi Bhusan Deb and others 55 DLR (AD) 86.
Section 153—
The
fact that a dead man had been made party by mistake does not deprive the court
of the power to implead his legal representatives under section 153 CPC.
Hakim Ullah
vs. Mutaleh and others 49 DLR 118.
Section 153
& Order XLI rule 19-
The
District Judge is permitted to invoke his authority of general power of
amending any defect or error in any proceeding which arose out of a suit.
Abdur Rahman
and others vs Md Shamsul Huq and others 53 DLR 364.