Section 36—
If a judgment is passed on admission then no decree need be drawn up and the plaintiff may enforce payment of the amount in pursuance of the judgment.
Messrs Kadam Rasul Silicate Works vs Sonali Bank 37 DLR 2 I 5.
Sections 38 and 39—
Sections 38 and 39 of the Code of Civil Procedure have no manner of application with regard to the function of receiving or entertaining the certified copy of a decree passed by a Superior Court of the United Kingdom for executing the same in Bangladesh.
Sonali Bank vs Abidur Rahman 42 DLR 311.
Section 44A(1)—
The “District Court” mentioned in section 44A(1) of the Code means only the Court of the District Judge. In other words, the certified copy of decree under section 44A(1) of the Code must be filed in the court of the “District Judge”.
Sonali Bank vs Abidur Rahman 42 DLR 311.
Section 44A(i)—
The decree of the High Court in England is enforceable in a District Court in Bangladesh as if it had been passed by such District Court, but an arbitration award, even if enforceable as a decree or judgment, has -been excluded from the meaning of the term “decree” and not executable as such.
British Airways PLC vs Bangladesh AIR Services Pvt Ltd 48 DLR 2 49.
Section 47—
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.
Sections 47 and 151—
Therefore an application under section 151 CPC against an order of dismissal for default cannot be thrown out.
In these circumstances his application under section 151 of the Civil Procedure Code against the order of dismissal for default cannot be thrown out in limine as not maintainable and should have been considered on merits.” Reliance may also be placed in the case of Anindya vs Suraj AIR 1963 P 59 wherein it has been held that application dismissed for default may be restored under section 151 of the Civil Procedure Code.
Sonaban Bibi vs Abu Miah 38 DLR 432.
Sections 47, 151 and Order IX—
Provision of Order IX, CPC not attracted in case of an application made under section 47 against an order of dismissal for default-Section 151 only would be attracted for remedy against dismissal order.
Sonaban Bibi vs Abu M iah 38 DLR 432.
Section 48—
An application for execution has to satisfy first Article 182 of the Limitation Act being the earliest period prescribed and then also section 48 CPC which prescribed the maximum period of limitation. If the execution petition is hit by any of the two provisions it is to fail. ADC (Revenue).
Pabna vs Md Abdul Halim Mia 48 DLR (AD) 141.
Section 48—
An execution to be validly proceeded with must satisfy that the application last in point of time for execution was not made after the expiration of 12 years and also not beyond three years from the date of decree or order, or appellate decree or order.
Shafiqur Rahman vs Bangladesh Jatiya Samabaya Bank 53DLR 78.
Section 48 & OrderXXI rule 2-
Under the Code of Civil Procedure the decree-holder and the judgment debtor can enter into any agreement for adjustment of a decree without the sanction of the court. In order to enable the executing court to execute the decree as adjusted the only requirement is that the adjustment should be certified under Order XXI rule 2 of the Code. The decree holder can certify such adjustment at any time as there is no limitation with regard to his certification.
Bangladesh House Building Finance Corporation vs Md Abdul Hoque 55 DLR 270.
Section 51(a) & Order XXI rule 11(2)(j)(i)-
Decree for delivery of possession of an immovable property must specify the property to facilitate execution. The executing Court can neither go beyond nor behind the decree to supply the specification which is not there in the decree itself, because that would amount to usurping the jurisdiction of the trial Court.
Sahera Khatun and others vs Abdul Gaffar @Abdul Gafar and others 55 DLR (AD) 79.
Section 56—
In view of the language used in section 6 ka of the Artha Rin Adalat Ain, 1990 the provisions of section 56 of the Code of Civil Procedure will not be a bar in passing an order for detention or arrest of a woman in execution of a decree for payment of money.
Hazera Begum vs Artha Rin Ada/at and another 54 DLR 78.
Section 60 and Order XXI Rule 64-
Convenience and/or 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.
Section 64 and Order XXI, rule 64- –
Canons of Professional Conduct and Etiquette
“( 1) An Advocate shall not acquire an interest adverse to a client in the property or interest involved in the case.”
Held: A client does not always have a proprietary interest in the suit properly. He may have possessory interest.
Further Held: On a discussion of the evidence on record that the appellant’s various defenses have fallen into pieces. Reprimand is the mildest punishment that can be meted out to an Advocate found guilty of professional or other misconduct, Suspension from practice is a sentence of a higher degree but it really belongs to the intermediate class of punishment. Removal from practice is the ultimate punishment that can be meted out to a delinquent Advocate.
No reason is visible why the intermediate punishment should now be relegated to the softest one. From the moment he received the legal notice from the bank upto the present moment his (the appellant’s) attitude is one of defiance, contest and challenge. He has no regrets, no remorse, no repentance either. He has chalked out a path of destructive self-justification. He must pay for his defiance. No extenuating circumstances whatsoever to reduce the sentence is noticed. Appeal is therefore dismissed.
HR Talukder vs DM Pubali Bank 40 DLR 170.
Section 64 & Order XXI rule 54-
Where no evidence of prohibitory orders under Order XXI, rule 54 and its proclamation is given in the mode prescribed therein, an alienation by the judgment debtor cannot be impeached under section 64 of the Code of Civil Procedure.
Badiul Alam being dead his heir Fazlul Karim vs Md Nurullslam 55 DLR 517.
Section 66-
The object of both the sections is to put a stop to benami purchases in auction sale. Both the sections have provided that no suit shall be maintainable against a certified purchaser.
Angada Chandra Roy vs Amrendra Nath Mondal and others 48 DLR 595.
Section 66—
All cases of purchase made in a court’s auction on behalf of or on account of the plaintiff fall within the mischief of this section.
Abdul Gani Howlader (Md) and another vs Abdus Somed Howlader and others 51DLR522
Sections 75, 77 Order XXVI rule 5—
Letter of request to our High Commissioner in Delhi would be the most convenient and effective mode to record the deposition of the plaintiff in Delhi, who will not encounter the difficulties that a Commissioner may face with.
Abdul Latif vs Jahanara Begum and others 55 DLR 611.
Section 79 and Order XXVII—
The Government of Bangladesh is the proper person to institute suits in respect of such properties in accordance with the provisions of section 79 and Order XXVII of the Code of Civil Procedure. With the repeal of Ordinance 1 of 1969 the office of the Deputy Custodian or Assistant Custodians of Enemy Property which was a creature of the Defence of Pakistan Rules stood abolished. Plaintiff figuring himself as Asstt Custodian sought declaration that ex parte decree of 24 Dec 1961 was fraudulent and claimed that subject-matter of that suit vested in Deputy Custodian of Enemy Property. But the suit not having been instituted by the Government it does not lie.
Subitri Barai vs Asstt Custodian 39 DLR 172.
Section 80-
Suit against government without notice-Absence of service of notice cannot be a ground for dismissal of the suit.
Khorshed Ahmed Chowdhury vs Bangladesh 43 DLR264.
Section 82-
Section 82 CPC is not applicable to the enforcement of a judgment and order passed in a writ proceeding.
Coming now to section 82 of the Civil Procedure Code it is noticed that both the clauses of section 82 of the Civil Procedure Code are in aid of an execution of a decree and as such do not apply for enforcing the judgment and order passed by this Court in a writ proceeding. Section 82 of the Civil Procedure Code is, therefore, not applicable to the present case.
Neerala Tea Estate vs Bangladesh 41DLR90.
Section 88-
The dispute as regards the chairmanship of the company cannot be a bar either on the part of the BTRC to decide the question of giving the frequency and the licence required to broadcast its programme and on the part of the other concerned respondents giving back the seized machineries/equipment to the company. There is thus no application of section 88 of the Code of Civil Procedure in the facts and the circumstances of these cases.
Ekushey Television Ltd and another vs Bangladesh and others 56 DLR 91.
Section 91(1)-
In case of public nuisance if a member of the public wants to initiate a civil proceeding it is incumbent upon him to obtain sanction under section 91(1) CPC in the absence of any special damage to him. In the case of a private nuisance no special damage is required to be proved. It is enough if the plaintiff can prove that by the unlawful user of the land/building by the defendant some annoyance or discomfort has been caused to him.
Wahid Mia vs Dr Rafiqul Islam and others 49 DLR 302.
Section 92-
The suit filed is not for a breach of trust against a trustee, rather it is a suit filed by a trustee against a person who claims to be a trustee or, so to say, Trustee vs Trustee. In such a situation the provision of section 92 will not be attracted.
Abul Masud Khan vs Khan Mohammad Abdullah Rahmatullah 47 DLR 143.
Section 92-
This section is meant for trust properties which is governed by Trust Act and not applicable to charitable societies registered under the Societies Registration Act.
BRAC and others vs Professor Mozajfar Ahmed and others 54 DLR (AD) 36.
Section 94-
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 94 and Order XXXIX Rule 1-
An order of injunction is not called for in election petition either under section 94 or under Order XXXIX, rule 1 of the Code of Civil Procedure.
It may be pointed out that rule 45 of the Ordinance, 1983 specifically sets out the remedy in election petition, both remedies are declaratory. An order of injunction under Order XXXIX, rule 1 of CPC is not necessary for achieving the reliefs conceived under rule 45. Again, an order of injunction is not necessary for preservation of the subject-matter of the election petition. Therefore, an order of injunction is not called for in an election petition either under Order XX.XIX, rule 1 CPC or section 94 of the said Code. For these reasons it is fortified by the decision reported in 27 DLR 388.
Mahmud Hussain vs Sayed Ali 41 DLR44.
Section 94 & Order XXXIX rule 2(3)—
When a violation case under Order :XXXIX rule 2(3) of the Code is pending before a court, no application under section 94 of the Code lies seeking direction upon the same offender for furnishing security for their appearance in default to commit them in civil prison.
M Abul Quashem and ors vs Moulvi Abdur Rab Miah and others 55 DLR 32.
Section 96—
Any person being aggrieved by decree competent to file an appeal against that Section 96 CPC does not prescribe that it is only that person against whom a decree has been passed or against whom a relief has been granted, who can come in appeal. Any person who can show that he is aggrieved by the decree, can file an appeal against the same. For determining as to who is an aggrieved person, one has to look to all the circumstance of the case and the substance of the decree passed.
“A defendant has the right of appeal notwithstanding that the suit has been dismissed as against him, if he is aggrieved by the decree”.
Md Sudeque Ali Munshi vs Abdul Rashid Talukder 38 DLR 414.
Section 96—
Lis pendens-Question of bar of appeal-The doctrine of /is pendens does not make alienations made during pendency of a suit void but only that such alienation will not affect the rights of other parties to the suit. It means that the purchaser pendente lite is bound by the result of the litigation. In the instant case, the petitioner having alleged that he had purchased the suit land and the decree passed in the suit adversely affected his interest the District Judge has committed an error of law in not according permission to the petitioner to file the appeal.
Bangladesh Leaf Tobacco Company Ltd vs Md Abdul Mannan 43 DLR 7.
Section 96—
Person not entitled to take appeal-the lower Appellate Court has come to a definite finding that the appellant purchased the land from one Nirode who had no saleable interest and as such he has not been affected by the ex parte decree. Nirode having no subsisting interest to transfer the land to the appellant and the appellant having not been made party in the suit he had no locus standi to file the appeal.
Gura Meah vs Haripada Parimal 43 DLR 181.
Section 96—
Appeal-Effect of its disposal -‘Appeal’ which has not been defined in the Code, is meant to be an application by an aggrieved party asking an appellate Court to set aside, modify or revise a decision of a subordinate court-an ‘appeal’ even if irregular, incompetent or time-barred is nonetheless an appeal-the order of dismissal of a memorandum of appeal as time-barred comes within the deeming provision of section 2(2) of the Code, because by such an order the rights of parties with regard to matters in dispute are finally determined.
Abdul Mannan vs Jobeda Khatun 44 DLR (AD) 37.
Sections 96 & 104—
If anybody is aggrieved by the judgment and decree, he can file an appeal although he is not a party in the suit.
Delwar Hossain (Md) vs Bangladesh and others 54 DLR 494.
Section 96(3) and Order II rule 2(2)—
Consent Decree-Limitation and Estoppel – Plaintiffs elected to give up all the reliefs prayed for in the suit and to limit their prayer, by amendment, to a declaration that they are the sole legal heirs of the loanee. On understanding with the plaintiffs, the defendants neither opposed the amendment nor advanced any argument. Since the plaintiffs elected to relinquish all reliefs except the one for saving the suit from limitation and to secure some benefits for themselves, they are bound by the principle of estoppel and cannot be allowed to argue for the same reliefs which they had voluntarily abandoned. The decree obtained by them being based on understanding and consent of the parties, they are not permitted to take any appeal from such consent decree. On the same principle, the defendant is also barred from preferring any appeal from the High Court Division’s judgment.
Parveen Babu vs. BHBFC 42 DLR (AD) 234.
Section 98—
Section 98 of the Code of Civil Procedure conceives of a reference only when the judges of a bench composing of more than two judges differ on point of law. The judges then may state the point of law upon which they differ and the matter shall then be heard upon. that point by one or more judges as appointed by the learned Chief Justice.
Uttara Bank Ltd vs Syed Abidur Reza and ors 56 DLR 461.
Section 98 & Order XLI rule 4—
Even a third party, if he is aggrieved by the decree, can file an appeal.
Indu Moti Howlader vs Additional Deputy Commissioner and others 50 DLR 444.
Section 100—
Absolute bar on interference by the High Court on findings of facts by the subordinate Court.
The Privy Council emphatically declared under section I 00 of the present Code that there is no jurisdiction to entertain a second appeal on the ground of erroneous finding of fact, however, gross or inexcusable the error may seem to be; and they added a notice of warning, that no court in India has power to add or enlarge the grounds specified in section 100.
Abdul Mannan Khan vs Bangladesh 38 DLR (AD) 201.
Section 100—
The appellate court reversed the finding of fact on evidence but once it is shown that such reversal has been made without taking notice of the documentary evidence the second appellate Court may reassess the evidence and come to its own finding on this point.
Abdul Latif vs Abdul Malek Kazi 38 DLR (AD) 22.
Section 100—
Where High Court Division can invoke its jurisdiction.
It is now well-established that the High Court Division can only invoke its jurisdiction under the said section if there is any error of law or procedure committed by the first appellate Court and such error has affected the merit of the decision, otherwise a finding of fact, however wrong it might appear, cannot be interfered with in second appeal.
Naimuddin vs AK Biswas 39 DLR (AD) 237.
Section 100—
High Court Division’s power in respect of finding of fact by the first appellate Court.
If a finding is not based on evidence or if it is based on utter inadequacy of evidence on which no reasonable conclusion can be reached then interference therewith in second appeal is certainly justified. High Court’s power in second
appeal does not include power to review the evidence to come to a finding of its own on a question of fact, but the High Court can give a finding which has not been given by the lower appellate Court on the evidence on record.
Naimuddin vs AK Biswas 39 DLR (AD) 237.
Section 100—
Plaintiff in order to succeed must establish his own case to obtain a decree and weakness of defendant’s case is no ground for passing a decree in favour of the plaintiff.
Naimuddin vs AK Biswas 39 DLR (AD) 237.
Section 100—
Interference with the decision of lower appellate Court.
Further, the lower appellate Court made a finding that the plaintiff was out of possession for more than 12 years and consequently, the suit is time-barred. The trial Court’s finding as to limitation thus stands reversed. We regret to notice that in spite of the finding as to limitation by the subordinate judge having been allowed to remain, the learned Judge of the High Court Division has found it possible and proper to restore the decree in favour of the plaintiff. We are thus of the view that the learned Judge plainly exceeded his jurisdiction under section 100 CPC and unnecessarily interfered with the decision of the lower appellate Court.
Naimuddin vs AK Biswas 39 DLR (AD) 237.
Section 100—
The learned Judge of the High Court Division failed to notice that mis-reading of evidence (by the lower court) being a mixed question of law and fact cannot be interfered with in second appeal.
Abdul Matin Chowdhury vs Chapala Rani 37 DLR (AD) 205.
Section 100-
Comparison of signatures (by lower appellate Court) is a question of fact which cannot be interfered with in second appeal.
Comparison of writing or signature with admitted writing or signature is a question of fact and the High Court Division is not to interfere with the conclusion of the First Appellate Court on such question. Comparison of signatures is a perfectly legal mode of proving hand-writing and however inconclusive such proof may be it cannot be considered as an error of law to base a conclusion on such proof alone; and a Court of second appeal is not competent to set aside a finding based on such comparison.
Abdul Matin Chowdhury vs Chapala Rani 37 DLR (AD) 205.
Section 100—
Concurrent findings of facts by the courts below binding in second appeal.
Concurrent findings of facts by the trial Court and the First Appellate Court is binding upon the High Court Division in a second appeal unless it could be shown that the said finding had been assailed by an error of law or of procedure which had affected the merit of the case.
Abdul Matin Chowdhury vs Chapala Rani 37 DLR (AD) 205.
Section 100—
There is no jurisdiction to entertain a second appeal under section I 00 CPC on the ground of erroneous finding of fact although the error may be gross or inexcusable.
Nur Mohammed vs Sultan Ahmed 40 DLR 369.
Section 100—
Findings of facts can hardly be assailed in Second Appeal.
On a careful examination of the judgment of the lower appellate Court it seems to me that finding that the kabala in question is not a benami transaction is based on solid foundation and does not call for any interference by this Court in Second Appeal as all the ingredients necessary to establish a benami transaction were found against the plaintiff and it came to the finding that the plaintiff failed to prove his title to and possession in the disputed land. These findings of facts can hardly be assailed in Second Appeal.
Mahmudul Haq vs Golap Bia 41DLR314.
Section 100 (repealed)—
Finding of fact of Court of Appeal below–Whether High Court Division can invoke its jurisdiction to interfere with the said finding-Error of law or procedure must affect the merit of the decision to warrant interference with the finding.
Md Naimuddin Sarker vs Md Abdul Biswas 41 DLR (AD) 3.
Section 100 (repealed)—
The High Court Division exceeded its jurisdiction in Second Appeal in disturbing the finding of fact as to possession without assigning any reason.
Fazar Ali vs Sikandar Ali 44 DLR (AD) 49.
Section 100 (repealed)—
Finding of fact – The High Court Division will not entertain a second appeal on the ground of erroneous finding of facts unless it is found that in arriving at the finding the Court below committed an error in procedure or law.
Nazir Ahmed vs Md Hazee Kalu 43 DLR 75.
Section 100 (repealed)—
In the instant case, registered patta Exhibit-1 and rent receipts Exhibit-2 series having not been considered by the Court below and its findings being vitiated by misreading of the material evidence the law clearly empowered the High Court Division to reverse the findings arrived at by the Courts of fact.
Golam Moula and others vs Gourpada Das and others 50 DLR (AD) 95.
Section 100 ( repealed)—
When there is no misreading of evidence or ignoring of evidence and the conclusions are based on corroborated evidence, the appraisal of evidence is not shown to be wrong and the decision is not based on mere surmises or conjectures, the finding of fact of the lower court cannot be challenged in second appeal. High Court cannot entertain second appeal on the finding even where the High Court may take a different view of facts.
Abdul Gani Khan vs Shamser Ali 45 DLR 349.
Section 100 (repealed)—
The High Court Division exceeded its jurisdiction under section 100 of the Code in disturbing the concurrent findings of fact arrived at by the Courts below in the absence of any misreading or nonconsideration of evidence or any error of law or procedure affecting the merit of the case.
Hriday Ranjan Dey and another vs Niranjan Dey and others 54 DLR (AD) 16,
Section 100 (repealed) & HS-
Extent of revisional power-With the repeal of section 100 and re-enactment of Section 115 in its new garb, the power of the High Court Division has increased to a large extent. The strict binding effect of concurrent findings of fact has been diminished to a large extent by introducing the words “error in the decision occasioning failure of justice”.
Bangladesh vs Md Aslam 44 DLR 69.
Sections 100-103 (repealed)—
High Court Division in Second Appeal cannot disturb a finding of fact arrived at by the lower appellate court which is based on evidence.
Abul Basar Sawdagar vs Aminul Haq 41DLR312.
Sections 100 & 103—
High Court Division was justified in being loathe to send back the case on remand when it appeared that the plaintiff had failed to prove the essential point of demand for reconveyance within the stipulated time.
Ali Ahmed and others vs Nazimuddin Patwary and others 49 DLR (AD) 90.
Sections 100-103 (repealed)—
Whether the High Court’s power in second appeal includes the power to review the evidence.
High Court’s power in second appeal does not include power to review the evidence to come to a finding of its own on a question of fact, but the High Court can give a finding which has not been given by the lower appellate Court on the evidence on record. After all, every case must be decided on the facts and circumstances of that case keeping in view these broad principles.
Naimuddin Sarker vs Md Abul Kalam Biswas 41 DLR (AD) 3.
Sections 100-103-(0mitted with effect from 1-6-1979)—
Findings of fact based on erroneous exposition of law can be disturbed.
Muktar Hussain Khan vs Suresh Chandra Dey 42 DLR 86.
Section 103—
High Court Division’s function in Second Appeal-Various decisions discussed. The High Court interfered with that finding and decided issues itself after resorting to section 103 of the Code. In upholding that decision it was held “that the function of the High Court in a second appeal is not the mere correction of error of a legal proposition, or pointing out the true procedure, but also to determine properly, issues of fact after making the correct exposition of law, if such determination is essential for disposal of the appeal. Subject to this narrow jurisdiction of interference, the finding of fact of the first appellate Court is conclusive and binding upon the High Court. “In 35 DLR (AD) 216 this court upheld the High Court Division’s interference in second appeal with the lower appellate Court’s finding of fact as to a tenancy, arrived at after excluding from its consideration the plaintiffs document of title and a long series of rent-receipts.
Sudhir Chandra vs Harimohan Das 39 DLR (AD) 218.
Section 103—
High Court Division without going into the heart of the matter objected to the finding of the appellate Court. In 38 DLR (AD) 22 it is held that the second appellate Court may reassess the evidence and come to its own finding where the appellate Court reversed the trial Court’s finding of fact without taking any notice of a material document on record. It was settled long ago in Najar Chandra Pal vs Sukur Sk AIR 1918 PC 92 that the High Court should not interfere with the findings of fact on the ground that upon the document and evidence being placed before the lower court the High Court would have come to a different conclusion.
Sudhir Chandra vs Harimohan Das 39 DLR (AD) 218.
Section 103—
The suit being too old and the necessary facts and other materials being already on record, this court in exercise of its power under section 103 of the Code should itself discuss and decide the same.
Abdur Rahman vs Tazlul Karim Sikdar and others 48 DLR 361.