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further direct that the decree-holder or purchaser be put into possession of

the property.

PART III
INCIDENTAL PROCEEDINGS

Commissions

Power of 75. Subject to such conditions and limitations as may be prescribed, the
Court to
issue Court may issue a commission-
commissions. (a) to examine any person;

(b) to make a local investigation;

(c) to examine or adjust accounts; or

(d) to make a partition.

[Omitted] 76. [Omitted by section 3 and 2nd Schedule of the Bangladesh Laws

(Revision And Declaration) Act, 1973 (Act No. VIII of 1973).]

Letter of 77. In lieu of issuing a commission the Court may issue a letter of request
request.
to examine a witness residing at any place not within Bangladesh.

Commissions 78. Subject to such conditions and limitations as may be prescribed, the
issued by
foreign provisions as to the execution and return of commissions for the
Courts. examination of witnesses shall apply to commissions issued by or at the

instance of-

(a) Courts situate beyond the limits of Bangladesh and established or

continued by the authority of Government, or

41[* * *]

(c) Courts of any State or country outside Bangladesh.

PART IV
SUITS IN PARTICULAR CASES

Suits by or against the Government or Public Officers in their official capacity

Suits by or 79. In a suit by or against the Government the authority to 79. In a suit by
against the
Government. or against the Government the authority to be named as plaintiff or
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defendant, as the case may be, 42[shall be Bangladesh]-

43[* * *]

Notice 80.(1) A suit may be instituted against the Government or against a public

officer, in respect of any act purporting to be done by such public officer in

his official capacity, after the expiration of two months next after notice in

writing has been delivered to or left at the office of,-

44[* * *]

(b)(i) in the case of a suit against the Government other than a suit relating

to the affairs of 45[the Railway], a Secretary to 46[the Government] or the

Collector of the District; and

(ii) in the case of a suit against the Government relating to the affairs of
47[the Railway], the General Manager of the Railway 48[* * *],

and in the case of a public officer, delivered to him or left at his office
stating the cause of action, the name, description of place of residence of

the plaintiff and the relief which he claims; and the plaint shall contain a
statement that such notice has been so delivered or left.

(2) Where any such suit is instituted without delivering or leaving such

notice as aforesaid or before the expiration of the said period of two

months or where the plaint does not contain a statement that such notice

has been so delivered or left, the plaintiff shall not be entitled to any costs
if settlement as regards the subject-matter of the suit is reached or the

Government or the public officer concedes the plaintiff's claim, within the
period of two months from the date of the institution of the suit:

Provided that in a suit instituted without such notice, the Court shall allow
not less than three months to the Government to submit its written

statement.

Exemption 81. In a suit instituted against a public officer in respect of any act
from arrest
and purporting to be done by him in his official capacity-
personal (a) the defendant shall not be liable to arrest nor his property to
appearance.
attachment otherwise than in execution of a decree, and,

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(b) where the Court is satisfied that the defendant cannot absent himself
from his duty without detriment to the public service, it shall exempt him

from appearing in person.

Execution 82.(1) Where the decree is against the Government or against a public
of decree.
officer in respect of any such act as aforesaid, a time shall be specified in
the decree within which it shall be satisfied; and, if the decree is not

satisfied within the time so specified, the Court shall report the case for the
orders of the Government.

(2) Execution shall not be issued on any such decree unless it remains
unsatisfied for the period of three months computed from the date of such

report.

Suits by Aliens and by or against foreign Rulers, Ambassadors and Envoys

When 83.(1) Alien enemies residing in Bangladesh with the permission of the
aliens may
sue. Government, and alien friends, may sue in the Courts in 49[Bangladesh],

as if they were citizens of 50[Bangladesh].

(2) No alien enemy residing in Bangladesh without such permission, or

residing in a foreign country, shall sue in any of such Courts.

Explanation.-Every person residing in a foreign country the Government of

which is at war with, or engaged in military operations against,

Bangladesh, and carrying on business in that country without a license in

that behalf under the hand of a Secretary to the Government shall, for the

purpose of sub-section (2), be deemed to be an alien enemy residing in a

foreign country.

When 84.(1) A foreign State may sue in any Court in 51[Bangladesh]:

foreign
States may Provided that such State has been recognized by the Government:
sue.
Provided, also, that the object of the suit is to enforce a private right vested
in the head of such State or in any officer of such State in his public

capacity.

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 1908: Act V] Civil Procedure

21. A commission under rule 19 may be issued to any To whom

Court within the local limits of whose jurisdiction the witness commission may
be issued
resides, or, where the witness resides within the local limits of
the ordinary original civil jurisdiction of the High Court
Division, to any person whom the Court thinks fit to execute the

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commission.

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Issue, execution

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22. The provisions of rules 6, 15, 16, 17 and 18 of this
Order is so far as they are applicable shall apply to the issue, and return of

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commissions,
execution and return of such commissions, and when any such and transmission

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commission has been duly executed it shall be returned, together of evidence to

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with the evidence taken under it, to the High Court Division, foreign Court

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which shall forward it to the Government, along with the letter
of request for transmission to the foreign Court.]

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[Exclusion of time taken by Commissioner

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23. Where a commission is issued for any purpose at any Exclusion of

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stage of a suit, the time taken by the Commissioner for returning time taken by
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the Commission after execution or for submitting the report, as
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the case may be, shall be excluded from the time fixed for doing
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anything or performing any act at that stage.]

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ORDER XXVII
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SUITS BY OR AGAINST THE GOVERNMENT OR PUBLIC OFFICERS

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IN THEIR OFFICIAL CAPACITY

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1. In any suit by or against the Government, the plaint or Suits by or

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written statement shall be signed by such person as the against

Government
of

Government may, by general or special order, appoint in this

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behalf, and shall be verified by any person whom the

Government may so appoint and who is acquainted with the
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facts of the case.

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2. Persons being ex-officio or otherwise authorised to act Persons

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for the Government in respect of any judicial proceeding shall authorized to act
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for Government
be deemed to be the recognized agents by whom appearances,
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acts and applications under this Code may be made or done on

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behalf of the Government.

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1
Sub-heading "Exclusion of time taken by commissioner" and rule 23 were added
by section 5 of the Code of Civil Procedure (Amendment) Ordinance, 1983 (Ordinance
No. XLVIII of 1983).
 296 Civil Procedure [1908: Act V

Plaints in suits 3. In suits by or against the Government, instead of

by or against inserting in the plaint the name and description and place of
Government residence of the plaintiff or defendant, it shall be sufficient to
insert the appropriate name as provided in section 79.
Agent for 4. The Government pleader in any Court shall be the agent

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Government to of the Government for the purpose of receiving processes

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receive process against the Government issued by such Court.

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Fixing of day for 5. The Court, in fixing the day for the Government to

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appearance on answer to the plaint, shall allow a reasonable time for the

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behalf of necessary communication with the Government through the
Government proper channel, and for the issue of instructions to the

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Government pleader to appear and answer on behalf of the

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Government, and may extend the time at its discretion.

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Attendance of 6. The Court may also, in any case in which the

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person able to Government pleader is not accompanied by any person on the

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answer questions part of the Government, who may be able to answer any
relating to suit

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material questions relating to the suit, direct the attendance of
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Government
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Extension of 7.(1) Where the defendant is a public officer and, on
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time to enable receiving the summons, considers it proper to make a reference

public officer to the Government before answering the plaint, he may apply to
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to make the Court to grant such extension of the time fixed in the
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reference to summons as may be necessary to enable him to make such

Government
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reference and to receive orders thereon through the proper

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channel.
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(2) Upon such application the Court shall extend the time
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for so long as appears it to be necessary.

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Procedure in 8.(1) Where the Government undertakes the defence of a

suits against suit against a public officer the Government pleader, upon
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public officer being furnished with authority to appear and answer the plaint,
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shall apply to the Court, and upon such application the Court
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shall cause a note of his authority to be entered in the register of

civil suits.
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(2) Where no application under sub-rule (1) is made by

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the Government pleader on or before the day fixed in the notice

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for the defendant to appear and answer, the case shall proceed
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as in a suit between private parties:

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Provided that the defendant shall not be liable to arrest,

nor his property to attachment, otherwise than in execution of a
decree.
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 1908: Act V] Civil Procedure

1 No security to be
[8A. No such security as is mentioned in rules 5 and 6 of
Order XLI shall be required from the Government or, where the required from
Government or a
Government has undertaken the defence of the suit, from any public officer in
public officer sued in respect of an act alleged to be done by certain cases
him in his official capacity.

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8B. [Omitted by section 3 and 2nd Schedule of the

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Bangladesh Laws (Revision and Declaration) Act, 1973 (Act

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No. VIII of 1973).]]

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[ORDER XXVIIA

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SUITS INVOLVING ANY SUBSTANTIAL QUESTION AS TO THE

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INTERPRETATION OF CONSTITUTIONAL LAW

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1. In any suit in which it appears to the Court that any Notice to the

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substantial question as to the interpretation of constitutional Attorney
General

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law is involved, the Court shall not proceed to determine that
question until after notice has been given to the Attorney
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General for Bangladesh if the question of law concerns the
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Government 3[* * *].
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2. The Court may at any stage of the proceedings order Court may add
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that the Government shall be added as a defendant in any suit Government as

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party
involving any substantial question as to the interpretation of
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constitutional law if the Attorney General for Bangladesh

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[***] whether upon receipt of notice under rule 1, or
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otherwise, applies for such addition is necessary or desirable

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for the satisfactory determination of the question of law

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involved.
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1
Rules 8A and 8B were inserted by the Government of India (Adaptation of Indian
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Laws) Order, 1937.

2
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Order XXVIIA was inserted by the Code of Civil Procedure (Amendment) Act,
1942 (Act No. XXIII of 1942).
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3
The words "and to the Advocate-General of the Province if the question of Law
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concerns a Provincial Government" were omitted by section 3 and 2nd Schedule of the
Bangladesh Laws (Revision and Declaration) Act, 1973 (Act No. VIII of 1973).
4
The words "or the Advocate-General of the Province as the case may be" were
omitted by section 3 and 2nd Schedule of the Bangladesh Laws (Revision and
Declaration) Act, 1973 (Act No. VIII of 1973).
 298 Civil Procedure [1908: Act V

Costs when 3. Where under rule 2 Government is added as a

Government defendant in a suit, the Attorney General 1[* * *] or the
added as
party Government shall not be entitled to or liable for costs in the
Court which ordered the addition unless the Court having
regard to all the circumstances of the case for any special

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reason otherwise orders.

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Application 4. In the application of this Order to appeals the word

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of Order to "defendant" shall be held to include a respondent and the word

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appeals
"suit" an appeal.]

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ORDER XXVIII

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SUITS BY OR AGAINST MILITARY OR NAVAL

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MEN OR AIRMEN

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Officers, 1.(1) Where any officer, soldier, sailor or airman actually

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soldiers, sailors in the service of the 2[Republic] in such capacity is a party to a
or airmen who

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cannot obtain suit, and cannot obtain leave of absence for the purpose of
prosecuting or defending the suit in person, he may authorise
leave may
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authorise any any person to sue or defend in his stead.
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person to sue
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or defend for (2) The authority shall be in writing and shall be signed
them
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by the officer, soldier, sailor or airman in the presence of (a)

his commanding officer, or the next subordinate officer, if the
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party is himself the commanding officer, or (b) where the

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officer, soldier, sailor or airman is serving in military, naval or

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air force staff employment, the head or other superior officer

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of the office in which he is employed. Such commanding or

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other officer shall counter sign the authority, which shall be

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filed in Court.
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(3) When so filed the counter signature shall be

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sufficient proof that the authority was duly executed, and that
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the officer, soldier, sailor or airman by whom it was granted

could not obtain leave of absence for the purpose of
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prosecuting or defending the suit in person.

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1
The comma and words ", the Advocate-General" were omitted by section 3 and
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2nd Schedule of the Bangladesh Laws (Revision and Declaration) Act, 1973 (Act No.
VIII of 1973).
2
The word "Republic" was substituted, for the word "State" by section 3 and 2nd
Schedule of the Bangladesh Laws (Revision and Declaration) Act, 1973 (Act No. VIII of
1973).