Open Book Examination

Md. Arifin Arif

LLBA2018000559
Question:
a) In which cases and how a District Judge or an Additional District Judge exercise
revisional power?
b) P filed a civil revision before the learned district judge, Dhaka against an order passed
by the learned Assistant Judge, 1st court Dhaka rejecting an application for
amendment or plaint in a suit for declaration of title. The civil was also rejected Has P
any remedy against the said rejection order passed by the learned District Judge?
Discuss with reference to relevant provision of law.
c) Discuss the provision relating to arrest and detention of a person by a civil court.
What are the Exception?

Answer to the question no. a

According to section 115 (2) & (3) of code of civil procedure, 1908
The Court of District Judge may, on the application of any party aggrieved, call for the record of
any suit or proceeding, in which an order has been passed by a Court of Joint District Judge,
Senior Assistant Judge or Assistant Judge, from which no appeals lies; and if such Court appears
to have committed any error of law resulting in an error in such order occasioning failure of
justice, the Court of District Judge may, revise such order and, make such order as it thinks fit. A
Court of Additional District Judge shall have all the powers of the District Judge under sub-
section (2) in respect of revision case which may be transferred to it by the District Judge.

Answer to the question no. b

Fact: P filed a civil revision before the learned district judge, Dhaka against an order passed by
the learned Assistant Judge, 1st court Dhaka rejecting an application for amendment or plaint in a
suit for declaration of title. The civil was also rejected Has P any remedy against the said
rejection order passed by the learned District Judge?

Issue: whether P has any remedy against the said rejection order passed by the learned District
Judge or not.

Decision: Yes! P has a revisional remedy filed to the High Court Division against such order.

Reasons behind decision: P cannot make an appeal against the said rejection order passed by
the learned District Judge. But a revision may be filed to the High Court Division against such
order. As per section 115 (1) The High Court Division may, on the application of any party
aggrieved, call for the record of any suit or proceedings, in which a decree or an order has been
passed by a Court of District Judge or Additional District Judge, or a decree has been passed by a
Court of Joint District Judge, Senior Assistant Judge or Assistant Judge, from which no appeal
lies; and if such Court appears to have committed any error of law resulting in an error in such
decree or order occasioning failure of justice, the High Court Division may, revise such decree or
order and, make such order in the suit or proceedings, as it thinks fit.

Answer to the question no. c

A decree is passed by the court under the Code of Civil Procedure (hereinafter referred to as
CPC) to decide the rights and liabilities of the persons in a matter of controversy. The person in
whose favour a decree is passed is called decree-holder and against whom the decree is passed is
judgement debtor. There are various ways under civil law by which a decree can be passed. One
such way is “arrest and detention”. The law relating to arrest and detention in the CPC has been
dealt with under Section 51 to 59 and Rules 30 to 40 of Order XXI.

Nature and scope

The provision is remedial in nature. It seeks to provide a remedy to the decree-holder where a
suit has been decided in his favour. Such a remedy can be in the form of arrest and detention of
the judgement debtor if he fails to satisfy the decree passed against him.

The provision applies to every person against whom the decree is passed under the Code. When
a decree is passed in favour of a person, then that person has to move to the court for execution
of that decree. The court then according to the provisions of the Code can order for arrest and
detention of the judgement debtor.

When arrest and detention may be ordered?

Under Section 51(c) of CPC, it is given that when a decree-holder moves to the court for
executing a decree, the court can execute such decree by the arrest and detention of the
judgement debtor.

The decree for arrest and detention may be passed in the following cases given under Order XXI:

• Under Rule 30, a decree for the payment of money can be executed by the arrest and
detention of the judgement debtor.
• Under Rule 31, where the decree is for a specific moveable party, it can be executed by
the arrest and detention of the judgement debtor.
• Under Rule 32, where the decree is for specific performance of the contract or an
injunction, the court can execute the decree by arrest and detention of the judgement
debtor.
Who cannot be arrested?

There are certain classes of persons that are exempted from arrest and detention under the
various provisions of CPC. Such persons include:

1. Women, as per Section 56,

2. Judicial officers, as per Section 135(1),
3. Where a matter is pending, their pleaders, mukhtars, revenue-agents, and witnesses
acting in obedience to a summons, under Section 135(2),
4. Members of legislatures, as per Section 135A,
5. Classes of persons, whose arrest according to the State Government, might be attended
with danger or inconvenience to the public, under Section 55(2), and
6. Where the decretal amount is less than two thousand TK, under section 58(1A).

Procedure to be followed

The procedure to be followed for arrest and detention is provided under Section 55. It says that a
judgement debtor can be arrested at any hour or any day during the execution of a decree, and
after such arrest, the person must be presented before the court. However, there are certain
restrictions regarding entry and time. They are as follows:

1. That no dwelling house shall be entered after sunset and before sunrise.
2. That no outer door shall be broken in order to enter the house unless such a house is
the occupancy of the judgement debtor, in case he refuses to prevent access thereto.
3. Where the room is in occupancy of a woman who is not the judgement debtor and does
not appear in public due to the customs, the officer shall give reasonable time and
facility to her to withdraw therefrom.
4. Where there is a decree for the payment of money, and the judgement debtor pays the
full decretal amount and the costs of the arrest to the arresting officer, he shall not be
arrested.

Period of detention

Section 58 specifies the period for which a person can be detained, which is decided according to
the amount of the decree which has been passed against him by the court, and where he has
failed to pay that decretal amount. It says that a person cannot be detained for more than three
months if the decretal amount exceeds five thousand rupees and, for an amount between two
thousand to five thousand TK, such detention cannot exceed six weeks. If the amount does not
exceed two thousand rupees, no order for detention of the judgement debtor can be made.

Release of judgment-debtor

• By the State Government, if there exists some infectious or contagious disease, or

• By the court which granted the execution;
• Or any court which is superior to the above court, on the grounds of serious illness.