Code of Civil Procedure I Bangladesh

What type of law is the CPC?

Procedural (adjective) law — does not create rights, only prescribes machinery to enforce them

Is the CPC exhaustive in general?

NOT exhaustive — legislature cannot foresee every situation

Is the CPC exhaustive on matters it covers?

IS exhaustive on matters it deals with — the Code itself is the law on those points

Which four provisions prove the CPC is not fully exhaustive?

s.151 (inherent power), s.4(1) (special laws), s.4(2) (Rent Acts), ss.122-123 (rule-making)

What does s.151 preserve?

The inherent power of the court to make orders necessary for the ends of justice or to prevent abuse of process

Does s.151 confer or recognise inherent power?

RECOGNISES (does not confer) — the power already exists

Two purposes of s.151

(1) Secure the ends of justice, (2) Prevent abuse of the process of the court

Maxim behind s.151

Actus curiae neminem gravabit — an act of the court shall prejudice no one

When can s.151 NOT be used?

(1) Where the Code is not silent, (2) Express provision exists, (3) Specific provision covers the point, (4) Alternative remedy exists

Key case on s.151: Most. Shahida Khatun v Abdul Malek Howladar (9 BLT)

Court may even devise a suitable procedure to overcome a deficiency in the law

Can court invoke s.151 suo motu?

YES — to correct its own mistake, unhindered by limitation (53 DLR 217)

Can a party invoke s.151?

YES — but the other side must be heard (10 BLT (AD) 100)

Limit 1 on s.151

Operates only where the Code is SILENT

Limit 2 on s.151

CANNOT override an express provision of the Code

Limit 3 on s.151

BARRED where a specific provision governs the point

Limit 4 on s.151

BARRED where an alternative remedy exists (29 DLR (SC) 185)

Decree [s.2(2)] definition

Formal expression of an adjudication which conclusively determines the rights of the parties

Four elements of a decree (F-R-C-S)

Formal expression, Rights determined, Conclusive, In a Suit

s.2(2) INCLUDES (decrees)

Rejection of a plaint; determination of any question under s.144 (restitution)

s.2(2) EXCLUDES (not decrees)

(a) Appeal-from-order adjudications, (b) Any order of dismissal for default

Types of decree: preliminary

Declares rights but leaves further steps (e.g. partition suit preliminary decree)

Types of decree: final

Completely disposes of the suit (e.g. partition final decree after commissioner)

Types of decree: partly preliminary, partly final

E.g. decree for possession (final) + inquiry into mesne profits (preliminary)

Order [s.2(14)] definition

Any formal expression of any decision of a civil court which is NOT a decree

Key difference: decree vs order origin

Decree only from a SUIT; order from a suit OR a proceeding

Key difference: decree vs order — rights

Decree CONCLUSIVELY determines rights; order may or may not

Key difference: decree vs order — number

Ordinarily ONE decree per suit; SEVERAL orders may be passed

Key difference: decree vs order — appeal

Decrees generally APPEALABLE; orders only if listed in s.104 or Order XLIII r.1

Key difference: decree vs order — second appeal

May lie from decree; NEVER from order

Borderline: rejection of a plaint

IS a DECREE (s.2(2)) — appealable

Borderline: return of a plaint for proper court

IS an ORDER (Order VII r.10) — appealable only via Order XLIII r.1

Borderline: rejecting appeal as insufficiently stamped

IS an ORDER — concerns admissibility, not rights

Borderline: dismissal of suit for default

NOT a decree (s.2(2) excludes it) — remedy is restoration (Order IX r.13)

Judgment [s.2(9)] definition

The statement given by the judge of the grounds of a decree or order

Judgment vs decree sequence

Judgment first, then decree drawn up based on the judgment; decree must agree with judgment

Mesne profits [s.2(12)] definition

Profits which wrongful possessor actually received, or might with ordinary diligence have received, PLUS interest

Mesne profits EXCLUDES

Profits due to improvements made by the wrongful possessor

Mesne profits nature

Compensation or damages the court moulds to the justice of the case

Mesne profits principle

The wrongful possessor must not profit from his own wrong

s.9 CPC: suits of a civil nature

Courts shall have jurisdiction to try ALL suits of civil nature except expressly or impliedly barred

s.9 presumption

Presumption FAVOURS jurisdiction — assume jurisdiction unless bar is clear

s.9: ouster of jurisdiction construction

Construed STRICTLY against the ouster

s.9: express bar example

Family Courts Ordinance 1985 — civil courts have NO jurisdiction

s.9: implied bar example

Artha Rin Adalat (bank loan disputes) — special forum set up, civil court impliedly ousted

Five civil courts (Civil Courts Act 1887 s.3)

District Judge, Additional District Judge, Joint District Judge, Senior Civil Judge, Civil Judge

2026 amendment (eff. 2 November 2025): name change

Assistant Judge → Civil Judge; Senior Assistant Judge → Senior Civil Judge

2026 amendment: what changed

Names ONLY — pecuniary limits set by 2021 amendment unchanged

Civil Judge jurisdiction (current)

Up to Tk. 15 lakh

Senior Civil Judge jurisdiction (current)

Up to Tk. 25 lakh

Joint District Judge jurisdiction

UNLIMITED pecuniary jurisdiction

First appeal from JDJ: forum and limit

District Judge if value up to Tk. 5 crore; above Tk. 5 crore → HCD

First appeal from Civil Judge or Senior Civil Judge

Goes to the District Judge

Pecuniary jurisdiction meaning

The court's power based on the VALUE of the suit

Territorial jurisdiction meaning

Based on where the property is or where the cause of action arose (ss.16-20)

Subject-matter jurisdiction meaning

Some subjects go to special courts (family, rent, small causes)

Original vs appellate jurisdiction meaning

Some courts hear only original suits, others only appeals

Revisional / reference / review jurisdiction meaning

Correction after judgment

s.21: objection to jurisdiction rule

Pecuniary/territorial objection not entertained in appeal unless taken at EARLIEST opportunity + failure of justice

s.21: subject-matter objection

Can be taken at ANY stage — decree without subject-matter jurisdiction is a NULLITY

11 stages of a civil suit (I-S-W-M-I-D-P-A-J-P-E)

Institution, Summons, Written Statement, Mediation, Issues, Discovery, Peremptory hearing, Arguments, Judgment, Post-decree, Execution

Stage 1: Institution

Plaintiff files plaint (Order VII) with court fees and document list; suit registered and numbered

Stage 2: Summons

Court issues summons (Order V) asking defendant to appear and file written statement

Stage 3: Written Statement

Defendant files WS (Order VIII) within prescribed time; pleadings now closed

Stage 4: Mandatory Mediation

Court refers parties to mediation (s.89A amended) — if succeeds, compromise decree; if fails, suit continues

Stage 5: Framing of Issues

Court identifies disputed points from pleadings (Order XIV)

Stage 6: Discovery & Admissions

Order XI (interrogatories, discovery, inspection); Order XII (notice to admit)

Stage 7: Peremptory Hearing (Trial)

Evidence led (Order XVIII) — plaintiff opens, defendant cross-examines, then vice versa

Stage 8: Arguments

Both sides address the court on evidence and law

Stage 9: Judgment & Decree

Court pronounces judgment (Order XX); decree drawn up based on judgment

Stage 10: Post-decree Remedies

Appeal (s.96), review (s.114), revision (s.115), reference (s.113)

Stage 11: Execution

Decree-holder applies to execute (ss.36-74, Order XXI) — modes: delivery, attachment, arrest

s.10: res sub judice purpose

Prevent parallel trials on same issue; avoid conflicting judgments; save time

s.10: res sub judice effect

MANDATORY stay of the LATER-instituted suit (Ayat Ali Bhuiyan, 40 DLR 56)

Five conditions of s.10 (all required)

(1) Same parties, (2) Matter directly + substantially same, (3) Same title, (4) Earlier suit PENDING in competent court, (5) Earlier court competent to grant relief

s.11: res judicata purpose

Give finality to litigation; prevent harassment through repeat suits

s.11: res judicata maxim 1

Interest reipublicae ut sit finis litium — public interest demands end to litigation

s.11: res judicata maxim 2

Nemo debet bis vexari pro una et eadem causa — no one should be vexed twice for same cause

s.11: res judicata maxim 3

Res judicata pro veritate accipitur — matter adjudicated is taken as the truth

Five conditions of s.11

(1) Matter directly + substantially same, (2) Same parties, (3) Same title, (4) Former court competent, (5) Matter HEARD AND FINALLY DECIDED

s.11 Explanation I

'Former suit' = decided EARLIER — which was FILED first does NOT matter

s.11 Explanation III

Only the point actually pleaded by one side and admitted/denied by other is 'directly + substantially' in issue

s.11 Explanation IV: Constructive res judicata

Any matter that MIGHT AND OUGHT to have been raised in former suit is deemed to have been in issue (barred)

s.11 Explanation VI

Representative-capacity litigation binds all whom plaintiff represents

Constructive res judicata test (Explanation IV)

Was the point one that MIGHT and OUGHT to have been raised as attack or defence in former suit?

Constructive res judicata example

Mortgagor sued on usury ground + lost — cannot later sue on forgery ground (ought to have been raised in first suit)

Alekjan v Chand Mia (1979 BSCR 535)

Where subject-matter of two suits is DIFFERENT, res judicata does NOT bar later suit

Hajizuddin v Bangladesh (42 DLR (AD) 57)

Where earlier title suit dismissed on merits, later title-and-possession suit IS barred

s.10 vs s.11: timing

s.10 applies to suit PENDING trial; s.11 applies AFTER suit finally decided

s.10 vs s.11: effect

s.10 STAYS later trial; s.11 BARS later suit entirely

s.10 vs s.11: what is the status of the earlier suit?

s.10 requires earlier suit PENDING; s.11 requires earlier suit FINALLY DECIDED

Memory hook: s.10 vs s.11

Sub judice = STAY. Judicata = BAR.

s.15: institution of suit rule

Every suit in the court of the LOWEST GRADE competent to try it

s.16: suits for immoveable property

Instituted where the PROPERTY is situated

s.20: other suits

Where the DEFENDANT resides or where the CAUSE OF ACTION arose

Order VII r.1: contents of plaint

(a) Court name, (b) Plaintiff name/address, (c) Defendant name/address, (d) Minor/unsound mind status, (e) Facts + cause of action, (f) Jurisdiction facts, (g) Relief claimed, (h) Set-off/relinquishment, (i) Value statement; since 2026 also the phone/mobile, NID and e-mail of the parties, and facts proved by affidavit (s.26(2))

Memory hook: plaint contents

Court-Names-Facts-Jurisdiction-Relief-Value

Order VII r.10: return of plaint

Court returns plaint to be presented to PROPER court (wrong court)

Return of plaint: nature

IS an ORDER (not decree) — appealable under Order XLIII r.1(a)

Order VII r.11: rejection of plaint — ground (a)

Does not DISCLOSE A CAUSE OF ACTION

Order VII r.11: rejection — ground (b)

RELIEF UNDERVALUED — plaintiff fails to correct valuation within time