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

h.
reason otherwise orders.

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

lad
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

rs,
SUITS BY OR AGAINST MILITARY OR NAVAL

fai
MEN OR AIRMEN

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ry
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

of

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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.
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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).
 1908: Act V] Civil Procedure

Explanation.-In this Order the expression "commanding

officer" means the officer in actual command for the time being
of any regiment, corps, ship, detachment or deport to which the
officer, soldier, sailor or airman belongs.

h.
2. Any person authorised by an officer, soldier, sailor or Person so

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authorised
airman to prosecute or defend a suit in his stead may prosecute may act

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or defend it in person in the same manner as the officer, soldier, personally or

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sailor or airman could do if present; or he may appoint a pleader appoint

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to prosecute or defend the suit on behalf of such officer, soldier, pleader
sailor or airman.

rs,
fai
3. Processes served upon any person authorised by an Service on

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person so
officer, soldier, sailor or airman under rule 1 or upon any authorised, or

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pleader appointed as aforesaid by such person shall be as on his pleader,

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effectual as if they had been served on the party in person. to be good
service

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ORDER XXIX lia
SUITS BY OR AGAINST CORPORATIONS
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1. In suits by or against a corporation, any pleading may Subscription

and
be signed and verified on behalf of the corporation by the
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verification of
secretary or by any director or other principal officer of the pleading
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corporation who is able to depose to the facts of the case.

sti
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2. Subject to any statutory provision regulating service of Service on

process, where the suit is against a corporation, the summons corporation
w,
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may be served-
of

(a) on the secretary, or on any director, or other principal

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officer of the corporation, or

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(b) by leaving it or sending it by post addressed to the

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corporation at the registered office, or if there is no

registered office then at the place where the corporation
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carries on business.
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3. The Court may, at any stage of the suit, require the Power to
require
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personal appearance of the secretary or of any director, or other personal

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principal officer of the corporation who may be able to answer attendance of

material question relating to the suit. officer of
.
corporation

ORDER XXX
 1908: Act V] Civil Procedure

party to a suit by or against her. executrix not to

join

ORDER XXXII

SUITS BY OR AGAINST MINORS AND PERSONS OF UNSOUND MIND

h.
es
1. Every suit by a minor shall be instituted in his name by Minor to sue by
a person who in such suit shall be called the next friend of the next friend

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minor.

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2.(1) Where a suit is instituted by or on behalf of a minor Where suit is
without a next friend, the defendant may apply to have the instituted

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plaint taken off the file, with costs to be paid by the pleader or without next

fai
friend, plaint to
other person by whom it was presented. be taken off the

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file

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(2) Notice of such application shall be given to such
person, and the Court, after hearing his objections (if any), may
make such order in the matter as it thinks fit.
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lia
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3.(1) Where the defendant is a minor, the Court, on being Guardian for the
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satisfied of the fact of his minority, shall appoint a proper suit to be

person to be guardian for the suit for such minor. appointed by
an

Court for minor

defendant
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(2) An order for the appointment of a guardian for the suit

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may be obtained upon application in the name and on behalf of

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the minor or by the plaintiff.

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(3) Such application shall be supported by an affidavit

of

verifying the fact that the proposed guardian has no interest in

try

the matters in controversy in the suit adverse to that of the minor

and that he is a fit person to be so appointed.
nis
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(4) No order shall be made on any application under this

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rule except upon notice to the minor and to any guardian of the
minor appointed or declared by an authority competent in that
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behalf, or, where there is no such guardian, upon notice to the

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father or other natural guardian of the minor, or, where there is

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no father or other natural guardian, to the person in whose care

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the minor is, and after hearing any objection which may be
urged on behalf of any person served with notice under this sub-
rule.
.

(5) A person appointed under sub-rule (1) to be guardian

 304 Civil Procedure [1908: Act V

for the suit for a minor shall, unless his appointment is

terminated by retirement, removal or death, continue as such
throughout all proceedings arising out of the suit including
proceedings in any appellate or revisional Court and any
proceedings in the execution of a decree.

h.
Who may act 4.(1) Any person who is of sound mind and has attained

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as next friend majority may act as next friend of a minor or as his guardian
or be

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for the suit:
appointed

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guardian for Provided that the interest of such person is not adverse to

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the suit that of the minor and that he is not, in the case of a next friend,
a defendant, or, in the case of a guardian for the suit, a

rs,
plaintiff.

fai
(2) Where a minor has a guardian appointed or declared

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by competent authority, no person other than such guardian

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shall act as the next friend of the minor or be appointed his

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guardian for the suit unless the Court considers for reasons to

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be recorded, that it is for the minor's welfare that another
person be permitted to act or be appointed, as the case may be.
lia
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(3) No person shall without his consent be appointed
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guardian for the suit.

(4) Where there is no other person fit and willing to act
an

as guardian for the suit, the Court may appoint any of its
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officers to be such guardian, and may direct that the costs to be

sti

incurred by such officer in the performance of his duties as

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such guardian shall be borne either by the parties or by any

one or more of the parties to the suit, or out of any fund in
w,

Court in which the minor is interested, and may give directions

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for the repayment or allowance of such costs as justice and the

of

circumstances of the case may require.

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Representatio 5.(1) Every application to the Court on behalf of a minor,

nis

n of minor by other than an application under rule 10, sub-rule (2), shall be
next friend or
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made by his next friend or by his guardian for the suit.

guardian for
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the suit (2) Every order made in a suit or on any application,

before the Court in or by which a minor is in any way
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concerned or affected, without such minor being represented

by a next friend or guardian for the suit, as the case may be,
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may be discharged, and, where the pleader of the party at

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whose instance such order was obtained new, or might

reasonably have known, the fact of such minority, with costs
to be paid by such pleader.
 1908: Act V] Civil Procedure

6.(1) A next friend or guardian for the suit shall not, Receipt by
without the leave of the Court, receive any money or other next friend or
movable property on behalf of a minor either− guardian for
the suit of
(a) by way of compromise before decree or order, or property under
decree for
(b) under a decree or order in favour of the minor.

h.
minor

es
(2) Where the next friend or guardian for the suit has not

lad
been appointed or declared by component authority to be
guardian of the property of the minor, or, having been so

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appointed or declared, is under any disability known to the

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Court to receive the money or other movable property, the Court

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shall, if it grants him leave to receive the property, require such

fai
security and give such directions as will, in its opinion,
sufficiently protect the property from waste and ensure its

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proper application.

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nta
7.(1) No next friend or guardian for the suit shall, without Agreement or
the leave of the Court, expressly recorded in the proceedings, compromise

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enter into any agreement or compromise on behalf of a minor
lia by next friend
with reference to the suit in which he acts as next friend or or guardian for
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guardian. the suit
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(2) Any such agreement or compromise entered into

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without the leave of the Court so recorded shall be voidable

against all parties other than the minor.
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8.(1) Unless otherwise ordered by the Court, a next friend Retirement of

sti

shall not retire without first procuring a fit person to be put in next friend
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his place and giving security for the costs already incurred.
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(2) The application for the appointment of a new next

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friend shall be supported by an affidavit showing the fitness of

of

the person proposed, and also that he has no interest adverse to

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that of the minor.

nis

9.(1) Where the interest of the next friend of a minor is Removal of

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adverse to that of the minor or where he is so connected with a next friend

defendant whose interest is adverse to that of the minor as to
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make it unlikely that the minor's interest will be properly

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protected by him, or where he does not do his duty, or, during

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the pendency of the suit, ceases to reside within Bangladesh, or

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for any other sufficient cause, application may be made on

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behalf of the minor or by a defendant for his removal; and the

Court, if satisfied of the sufficiency of the cause assigned, may
order the next friend to be removed accordingly, and make such
other order as to costs as it thinks fit.
.
 306 Civil Procedure [1908: Act V

(2) Where the next friend is not a guardian appointed or

declared by an authority competent in this behalf, and an
application is made by a guardian so appointed or declared,
who desires to be himself appointed in the place of the next
friend, the Court shall remove the next friend unless it

h.
considers, for reasons to be recorded by it, that the guardian

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ought not to be appointed the next friend of the minor, and

lad
shall thereupon appoint the applicant to be next friend in his

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place upon such terms as to the costs already incurred in the

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suit as it thinks fit.

rs,
Stay of 10.(1) On the retirement, removal or death of the next
proceedings

fai
friend of a minor, further proceedings shall be stayed until the
on removal,

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etc., of next appointment of a next friend in his place.

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friend
(2) Where the pleader of such minor omits, within a

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reasonable time, to take steps to get a new next friend

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appointed, any person interested in the minor or in the matter
in issue may apply to the Court for the appointment of one,
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and the Court, may appoint such person as it thinks fit.
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dP

Retirement, 11.(1) Where the guardian for the suit desires to require
removal or
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or does not do his duty, or where other sufficient ground is

death of
made to appear, the Court may permit such guardian to retire
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guardian for
the suit or may remove him, and may make such order as to costs as it
sti

thinks fit.
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(2) Where the guardian for the suit retires, dies or is

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removed by the Court during the pendency of the suit, the

Court shall appoint a new guardian in his place.
of
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Course to be 12.(1) A minor plaintiff or a minor not a party to a suit

followed by
nis

on whose behalf an application is pending shall, on attaining

minor
majority, elect whether he will proceed with the suit or
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plaintiff or
applicant on application.
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attaining
(2) Where he elects to proceed with the suit or
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majority
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application, he shall apply for an order discharging the next

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friend and for leave to proceed in his own name.

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(3) The title of the suit or application shall in such case

be corrected so as to read henceforth thus:-
"A. B., late a minor, by C. D., his next friend, but now
.
having attained majority.
 1908: Act V] Civil Procedure

(4) Where he elects to abandon the suit or application, he

shall, if a sole plaintiff or sole applicant, apply for an order to
dismiss the suit or application on repayment of the costs
incurred by the defendant or opposite party or which may have
been paid by his next friend.

h.
(5) Any application under this rule may be made ex parte:

es
but no order discharging a next friend and permitting a minor

lad
plaintiff to proceed in his own name shall be made without

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notice to the next friend.

Ba
13.(1) Where a minor co-plaintiff on attaining majority Where minor

rs,
desires to repudiate the suit, he shall apply to have his name co-plaintiff
attaining

fai
struck out as co-plaintiff; and the Court, if it finds that he is not majority

Af
a necessary party, shall dismiss him from the suit on such terms desires to

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as to costs or otherwise as it thinks fit. repudiate suit

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(2) Notice of the application shall be served on the next

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friend, on any co-plaintiff and on the defendant.
lia
(3) The costs of all parties of such application, and of all or
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any proceedings theretofore had in the suit, shall be paid by such
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persons as the Court directs.

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(4) Where the applicant is a necessary party to the suit, the

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Court may direct him to be made a defendant.

sti

14.(1) A minor on attaining majority may, if a sole Unreasonable

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plaintiff, apply that a suit instituted in his name by his next or improper
w,

suit
friend be dismissed on the ground that it was unreasonable or
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improper.
of

(2) Notice of the application shall be served on all the

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parties concerned; and the Court, upon being satisfied of such

nis

unreasonableness of impropriety, may grant the application and

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order the next friend to pay the costs of all parties in respect of
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the application and of anything done in the suit, or make such

other order as it thinks fit.
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15. The provisions contained in rules 1 to 14, so far as they Application

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are applicable, shall extend to persons adjudged to be or of rules to

persons of
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unsound mind and to persons who though not so adjudged are unsound
found by the Court on inquiry, by reason of unsoundness of mind
mind or mental infirmity, to be incapable of protecting their
.
interests when suing or being sued.
 308 Civil Procedure [1908: Act V

Saving for 16. Nothing in this order shall apply to a Sovereign

Princess and Prince or Ruling Chief suing or being sued in the name of his
Chiefs
State, or being sued by direction of the Government in the
name of an agent or in any other name, or shall be construed to
affect or in any way derogate from the provisions of any local

h.
law for the time being in force relating to suits by or against

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minors or by or against lunatics or other persons of unsound

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mind.

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ORDER XXXIII

Ba
SUITS BY PAUPERS

rs,
fai
Suits may be 1. Subject to the following provisions, any suit may be
instituted in

Af
instituted by a pauper.
forma

ry
pauperis
Explanation.−A person is a "pauper" when he is not

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possessed of sufficient means to enable him to pay the fee

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prescribed by law for the plaint in such suit, or, where no such
lia
fee is prescribed, when he is not entitled to property worth
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1
[five thousand Taka] other than his necessary wearing-apparel
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and the subject-matter of the suit.

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Contents of 2. Every application for permission to sue as a pauper

application
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shall contain the particulars required in regard to plaints in

sti

suits: a schedule of any movable or immovable property

Ju

belonging to the applicant, with the estimated value thereof,

shall be annexed thereto; and it shall be signed and verified in
w,

the manner prescribed for the signing and verification of

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pleadings.
of

Presentation
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3. Notwithstanding anything contained in these rules, the

of application application shall be presented to the Court by the applicant in
nis

person, unless he is exempted from appearing in Court, in

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which case the application may be presented by an authorised

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agent who can answer all material questions relating to the

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application, and who may be examined in the same manner as

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the party represented by him might have been examined had

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such party attended in person.

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4.(1) Where the application is in proper form and duly Examination

1
The words "five thousand Taka" were substituted, for the words "one hundred
Taka" by section 5 of the Code of Civil Procedure (Amendment) Act, 2006 (Act No. VIII
of 2006).
 1908: Act V] Civil Procedure

presented, the Court may, if it thinks fit, examine the applicant, of applicant
or his agent when the applicant is allowed to appear by agent,
regarding the merits of the claim and the property of the
applicant.
(2) Where the application is presented by an agent, the If presented by
agent, Court

h.
Court may, if it thinks fit, order that the applicant be examined
may order

es
by a commission in the manner in which the examination of an
applicant to be

lad
absent witness may be taken. examined by

ng
commission

Ba
5. The Court shall reject an application for permission to Rejection of
sue as a pauper− application

rs,
(a) where it is not framed and presented in the manner

fai
prescribed by rules 2 and 3, or

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(b) where the applicant is not a pauper, or

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nta
(c) where he has, within two months next before the
presentation of the application, disposed of any property

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fraudulently or in order to be able to apply for permission
lia
to sue as a pauper, or
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(d) where his allegations do not show a cause of action, or
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(e) where he has entered into any agreement with reference

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to the subject-matter of the proposed suit under which

any other person has obtained an interest in such subject-
ce

matter.
sti
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6. Where the Court sees no reason to reject the Notice of day

application on any of the grounds stated in rule 5, it shall fix a for receiving
w,

day (of which at least ten days' clear notice shall be given to the evidence of
La

applicant's
opposite party and the Government pleader) for receiving such pauperism
of

evidence as the applicant may adduce in proof of his pauperism,

and for hearing any evidence which may be adduced in disproof
try

thereof.
nis

7.(1) On the day so fixed or as soon thereafter as may be Procedure at

Mi

convenient, the Court shall examine the witnesses (if any) hearing
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produced by either party, and may examine the applicant or his

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agent, and shall make a memorandum of the substance of their

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evidence.
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(2) The Court shall also hear any argument which the
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parties may desire to offer on the question whether, on the face

of the application and of the evidence (if any) taken by the Court
as herein provided, the applicant is or is not subject to any of the
.
prohibitions specified in rule 5.
 310 Civil Procedure [1908: Act V

(3) The Court shall then either allow or refuse to allow

the applicant to sue as a pauper.
1
[7A. Notwithstanding the provisions of rules 6 and 7,
the Court may directly grant the application, if, upon

h.
furnishing of a certificate by the plaintiff from a local

es
government representative or its authorized official to the

lad
effect that the plaintiff is a pauper within the meaning of rule 1

ng
of Order XXXIII of the Code, it is satisfied to believe that the

Ba
plaintiff is really a pauper.]
Procedure if

rs,
8. Where the application is granted, it shall be numbered
application

fai
and registered, and shall be deemed the plaint in the suit, and
admitted
the suit shall proceed in all other respects as a suit instituted in

Af
the ordinary manner, except that the plaintiff shall not be liable

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to pay any court-fee (other than fees payable for service of

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process) in respect of any petition, appointment of a pleader or

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other proceeding connected with the suit.
lia
Dispaupering 9. The Court may, on the application of the defendant, or
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of the Government pleader, of which seven days' clear notice
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in writing has been given to the plaintiff, order the plaintiff to

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be dispaupered−
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(a) if he is guilty of vexatious or improper conduct in the

sti

course of the suit;

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(b) if it appears that his means are such that he ought not to
w,

continue to sue as a pauper; or

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(c) if he has entered into any agreement with reference to

of

the subject-matter of the suit under which any other

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person has obtained an interest in such subject-matter.

nis

Costs where 10. Where the plaintiff succeeds in the suit, the Court
Mi

pauper shall calculate the amount of court-fees which would have

succeeds
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been paid by the plaintiff if he had not been permitted to sue as

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a pauper; such amount shall be recoverable by the Government

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from any party ordered by the decree to pay the same, and
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shall be a first charge on the subject-matter of the suit.

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.
.

11. Where the plaintiff fails in the suit or is dispaupered, Procedure

1
Rule 7A was inserted by section 5 of the Code of Civil Procedure (Amendment)
Act, 2006 (Act No. VIII of 2006).
 1908: Act V] Civil Procedure

or where the suit is withdrawn or dismissed,- where pauper

fails
(a) because the summons for the defendant to appear
and answer has not been served upon him in
consequence of the failure of the plaintiff to pay the
court-fee or postal charges (if any) chargeable for

h.
such service, or

es
(b) because the plaintiff does not appear when the suit is

lad
called on for hearing,

ng
the Court shall order the plaintiff or any person added as a co-

Ba
plaintiff to the suit, to pay the court-fees which would have been
paid by the plaintiff if he had not been permitted to sue as a

rs,
pauper.

fai
1
[11A. Where the suit abates by reason of the death of the Procedure

Af
plaintiff or of any person added as a co-plaintiff the Court shall where pauper

ry
suit abates
order that the amount of court-fees which would have been paid

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by the plaintiff if he had not been permitted to sue as a pauper

me
shall be recoverable by the Government from the estate of the
lia
deceased plaintiff.]
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12. The Government shall have the right at any time to Government
dP

apply to the Court to make an order for the payment of court- may apply for
payment of
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fees under rule 10, rule 11 or rule 11A. court-fees

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13. All matters arising between the Government and any Government to
sti

party to the suit under rule 10, rule 11, rule 11A or rule 12 shall be deemed a
party
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be deemed to be questions arising between the parties to the suit

w,

within the meaning of section 47.

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14. Where an order is made under rule 10, rule 11 or rule Recovery of
11A the Court shall forthwith cause a copy of the decree or amount of
of

court-fees
order to be forwarded to the Collector, who may, without
try

prejudice to any other mode of recovery, recover the amount of

nis

court-fees specified therein from the person or property liable

Mi

for the payment as if it were an arrear of land revenue.

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15. An order refusing to allow the applicant to sue as a Refusal to

pauper shall be a bar to any subsequent application of the like allow
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applicant to
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nature by him in respect of the same right to sue; but the sue as pauper
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applicant shall be at liberty to institute a suit in the ordinary to bar

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.
manner in respect of such right, provided that he first pays the subsequent
application of costs (if any) incurred by the Government and by the opposite

1
Rule 11A was inserted by section 2 of the Code of Civil Procedure (Amendment)
Act, 1942 (Act No. XXIV of 1942).
 312 Civil Procedure [1908: Act V

like nature party in opposing his application for leave to sue as a pauper.
Costs 16. The costs of an application for permission to sue as a
pauper and of an inquiry into pauperism shall be costs in the
suit.
ORDER XXXIV

h.
SUITS RELATING TO MORTGAGES OF IMMOVABLE PROPERTY

es
lad
Parties to 1. Subject to the provisions of this Code, all persons
suits for having an interest either in the mortgage-security or in the right

ng
foreclosure of redemption shall be joined as parties to any suit relating to

Ba
sale and
redemption
the mortgage.

rs,
Explanation.- A puisne mortgage may sue for foreclosure

fai
or for sale without making the prior mortgagee a party to the

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suit; and a prior mortgagee need not be joined in a suit to

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redeem a subsequent mortgage.

nta
Preliminary 2.(1) In a suit for foreclosure, if the plaintiff succeeds, the
decree in

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Court shall pass a preliminary decree -
foreclosure lia
suit (a) ordering that an account be taken of what was due to the
ar
plaintiff at the date of such decree for-
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(i) principal and interest on the mortgage,

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(ii) the costs of suit, if any, awarded to him, and

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(iii) other costs, charges and expenses properly incurred

by him up to that date in respect of his mortgage-
sti

security, together with interest thereon; or

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(b) declaring the amount so due at that date; and

w,
La

(c) directing−
(i) that, if the defendant pays into Court the amount so
of

found or declared due on or before such date as the

try

Court may fix within six months from the date on

nis

which the Court confirms and countersigns the

Mi

account taken under clause (a), or from the date on

which such amount is declared in Court under
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clause (b), as the case may be, and thereafter pays

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such amount as may be adjudged due in respect of

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subsequent costs, charges and expenses as provided

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in rule 10, together with subsequent interest on such

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sums respectively as provided in rule 11, the

plaintiff shall deliver up to the defendant, or to such
person as the defendant appoints, all documents in
.
his possession or power relating to the mortgaged