1.

a) Discuss Res Sub-judice and Res-Judicata with reference to the relevant

provisions of law. Under what circumstances a pending civil suit can be stayed?

Answer: Section 10 of the Code of Civil Procedure, 1908 deals with the doctrine of ‘res
sub-judice’ and section 11 of the Code deals with the doctrine of ‘res-judicata’.

Res sub-judice: Sub judice in Latin means ‘under judgment’. Technically the term ‘res
sub-judice’ means stay of suit. In other words, a suit is to be stayed the subject matter of
which is already a matter of issue in another suit. Section 10 of the Code of Civil
Procedure, 1908 specifies that no court shall proceed with the trial of any suit in which
the matter in issue is also directly and substantially in issue in a previous instituted suit
between the same parties and that the previous court in which the suit is pending is
competent to grant the relief claimed.

The object of the rule contained in section 10 is to prevent courts of concurrent jurisdiction
from simultaneously entertaining and adjudicating upon two parallel litigations in
respect of the same cause of action, the same subject matter and the same relief. The policy
of the law is to confine the plaintiff to one litigation. This section intends to protect a
person from multiplicity of proceedings and avoid conflict of decisions.

As to the explanation of section 10, the pendency of a suit in a foreign court does not
preclude the court in Bangladesh from trying a suit founded on the same cause of action.
Section 10 does not affect the Court’s power to pass interlocutory order for receiver,
injunction or attachment before judgment. This section has no effect in case of a suit filed
under any special law.

Res-judicata: The term ‘res-judicata’ is Latin in language and has been borrowed from
Roman law that means once adjudicated, cannot be re-adjudicated. Section 11 of the Code
of Civil Procedure, 1908 deals with the rule of res-judicata or a matter already adjudicated
upon or the law by which a prior judgment, order or decree prevents a Civil Court from
taking cognizance of a suit.

According to section 11, the conditions for applying res judicata between co-defendants
are:

 there must be conflict of interest between the defendants concerned;

1|Page
  it must be necessary to decide the conflict in order to give the plaintiff the relief he
claims;
 the question between the defendants must have been finally decided inter se
between them (Sachindra Lal Das v. Hriday Ranjan Das, DLR (AD) 56).

The doctrine of res-judicata is based on three maxims:

 No man should be vexed twice for the same cause;

 It is in the interest of the State that there should be an end to a litigation;
 A judicial decision must be accepted as correct.

Example:

A sues B for damages for breach of contract. The suit is dismissed. A subsequently filed
another suit against B for damages for breach of the same contract. The subsequent suit
shall be barred by the principle of res-judicata, because B shall not be vexed twice over
for the same cause.

The main object of this principle to avoid multiplicity of suits and there should be an end
to a litigation in the interest of the State.

Circumstances under which a pending civil suit can be stayed:

The following conditions must be satisfied for the application of stay of suit:

 Two Suits: There must be two suits, one previously instituted and the
subsequently instituted.
 Matter in issue: The matter in issue in subsequent suit is directly and substantially
in issue in the previous suit.
 Between same parties: Both the suits must be between the same parties or their
representatives.
 Same title: Such parties must be litigating under the same title in both the suits.
 Competent Court to grant relief: The court in which the previous suit has been
instituted is competent enough to grant the relief prayed for in the subsequent suit.
 Court: The previously instituted suit is instituted in the same Court or any other
Court in Bangladesh or any court outside Bangladesh established by the
Government (Kalipada v. Charulata, 60 C 1096).

2|Page
b) Distinguish between Res-Judicata and admission. Does an ex-parte decree operate
as Res-Judicata?

Answer: Distinction between Res-judicata and admission: Res-judicata is discussed

under section 11 of the Code of Civil Procedure, 1908 whereas admission is discussed
under Order 12 of the same Code. The distinctions between these two can be summarized
as follows:

 According to principle of res-judicata, a matter which is once adjudicated, cannot

be re-adjudicated. But admission is not about adjudication of a case, it is a
confession of acknowledgment of fact by one party claimed by other party.
 The purpose of res-judicata is to bar the proceeding of second case between two
cases which is filed later and after adjudication of the first one. Whereas, no suit is
barred for admission.
 To apply res-judicata, there has to be two suits: one is already adjudicated and
another is filed later. In case of admission, there has to be only one suit. So, the
question of barring the previous or later suit is not applicable in case of admission.
 Res-judicata is applicable in case of an adjudicated suit whereas admission is
applicable in case of a suit which is under proceeding.
 In case of res-judicata, the second suit which is filed after adjudication of the
previous one cannot be tried. Because the matter in issue is already decided by the
competent court once. In case of admission, it is needed to continue the
proceeding.

Ex-parte decree as res-judicata: An ex-parte decree is a decree passed against a defendant

in absentia. Despite service of summons, where on the date of hearing only plaintiff does
and the defendant does not appear, the Court may hear the suit ex-parte and pass a decree
against the defendant which is said under Order 9, rule 6(1)(a) of the Code of Civil
Procedure, 1908.

An ex-parte decree passed by a competent court on merits will operate as res-judicata

because of the effect of the ex-parte decree as like as bi-parte decree but not applicable in
case consent decree has been passed. In Bangladesh v. Rahimuddin Mollah and others, 7 BLD
(HCD) 307 case it is seen that in the former suit the issue regarding acquisition of
customary right of pasturage over the suit land by the plaintiff was raised and finally
decided though the suit was decided ex-parte. The decree even if decided ex-parte will
operate as res-judicata in the absence of fraud and the decree is binding.

3|Page
c) What are the conditions to fulfill for application of the principle Res-Judicata? A
files a suit against B for declaration that he is entitled to a certain land by inheritance
from C and the suit is dismissed. Can A file a fresh suit claiming the property on the
ground of adverse possession? Explain with reasons.
Answer:
Circumstances under which principle of res-judicata may be applied:
The following are the conditions of res-judicata:

 Identity of matter in issue: The matter in subsequent suit must have been directly
and substantially in issue in the former suit. Explanation III is direct res-judicata
and Explanation IV is constructive res-judicata. It is not necessary that the matters
in the two suits must be the same in verbatim. It is sufficient if the matter in issue
in the former suit was substantially the same (Md. Ali v. Upendra, 58 CLI 196).
 Identity of parties: The former suit must have been between the same parties or
parties under whom they or any of them claim.
 Same title: The parties in the subsequent suit must have litigated under the same
title in the former suit.
 Concurrence of jurisdiction: The court which had decided the former suit must
have been competent to try the subsequent suit or the suit in which such issue has
been subsequently raised.
 Final decision: The matter-in-issue in the subsequent suit must have been heard
and finally decided in the former. An issue was raised and finally decided, the rule
of res judicata applies although the suit was decided ex-parte.

No, A can’t file a fresh suit claiming the property on the ground of adverse possession.

A files a suit against B for declaration that he is entitled to a certain land by inheritance
from C and the suit is dismissed. Now A can’t file a fresh suit claiming the property on
the ground of adverse possession because it will be barred by the principle of res-judicata
under Section 11 of the Code of Civil Procedure, 1908.

One of the conditions of applying principle of res-judicata is whether the matters directly
and substantially in the subsequent suit were also directly and subsequently in issue in
former suit. Here, the plaintiff filed the suit for declaration of his title to the suit property
by inheritance. After that he again wants to file a fresh suit claiming the suit property on
the ground of adverse possession. Though the cause of action of the two suits are
different, the matters directly and substantially in issue in the two suits are the same. In

4|Page
both of the suits, the question as to who is the owner of the property is the main issue
and after deciding the first suit, the defendant is the owner of the property and this shall
be operated as res-judicata in the subsequent suit.

d) What are the distinguishing features of the principles of Res sub-judice and Res-
Judicata?
Answer:

The followings are the differences between res-judicata and res sub-judice:

 Res-judicata is applicable when the suit is already decided by the court of

competent jurisdiction. In the case of res sub-judice, it relates to a matter which is
pending in the court of competent jurisdiction.
 Res-judicata prevents the trial of a suit or issue in which the matter in issue has
already been in previous suit, whereas, res sub-judice bars the trial in which the
matter is pending for decision in the previous suit.
 Section 10 which describes res sub-judice bars the trial of a suit only, whereas,
section 11 bars both the trial of a suit, and of an issue subject to their respective
conditions.
 As to the procedure to be adopted under the two sections, section 11 says that no
court shall try any suit or issue etc. while the other says that no court shall proceed
with trial of any suit etc.
 Object of res-judicata is to give finality to decision given by the court. Object of res
sub-judice is to prevent two parallel litigations and avoid conflict of judgments.
 By res-judicata, the trial of subsequent suit is barred. By res sub-judice, trial of
subsequent suit is stayed.

2. Explain the following terms: a) Attachment before Judgment; (b)

Appointment of Receiver; (c) Inherent power of the court; (d) Local
investigation; (e) Mesne Profit; (f) Set off and Counter claim. (13th BJS)
Ans: a) Attachment before judgment:

Rule 5 to 13 of the Order 38 of the Code of Civil Procedure, 1908 deal with attachment
before judgment. In certain circumstances, a court may order attachment of the property
of the defendant to safeguard the interest of the plaintiff. The main object of this provision
is to prevent the defendant to defeat the realization of the decree that may be passed
against him.

5|Page
Grounds of attachment are said under rule 5. Where at any stage of the suit, the court is
satisfied by affidavit or otherwise that the defendant with the intent to obstruct or delay
the execution of any decree that may be passed against him:

i) Is about to dispose of the whole or any part of his property;

ii) Is about to remove the whole or any part of his property from the local
limits of the jurisdiction of the court;

The court may direct the defendant with a time limit either to furnish security of such
sum as may be specified to produce and place at the disposal of the court, when required,
the said property or the value of the same as may be sufficient to satisfy the decree, or to
appear and show cause why he should not furnish security.

According to rule 7, attachment shall be made in the manner provided for attachment of
property in execution of a decree. According to rule 12, the court cannot order attachment
of any agricultural produce in possession of an agriculturist. Rule 10 says an attachment
before judgment does not affect the rights of persons, existing prior to the attachment, if
they are not parties to the suit.

According to rule 8 any claim preferred to the property, attached before judgment, shall
be adjudicated upon in the manner provided for adjudication of claims to property
attached in execution of a decree, for the payment of money. Rule 11 says where the
property is under attachment, and a decree is subsequently passed in favour of the
plaintiff, it is not necessary to apply for fresh attachment of property in execution.

Order of attachment will be withdrawn if the defendant furnishes security, together with
security for costs of the attachment or the suit is dismissed according to rule 9. An order
passed under Rule 5 Order 38 is appealable.

b) Appointment of receiver:

Execution by appointment of receiver is one of the modes of execution of a decree

mentioned in section 51 and Order 40 of the Code of Civil Procedure, 1908. It is known
as equitable execution and being an equitable relief, it is entirely within the discretion of
the court.

6|Page
 According to rule 1 of Order 40, where it appears to the court to be just and convenient,
the court may by order-

 Appoint a receiver of any property, whether before or after decree;

 Remove any person from the possession and custody of the property;
 Commit the same to the possession, custody or management of the receiver; and
 Confer upon the receiver all such powers, as to bringing and defending suits and
for the realization, management, protection, preservation and improvement of the
property, the collection of the rents and profits thereof, the application and
disposal of such rents and profits, and the execution of documents as the owner
himself has, or such powers as the court thinks fit.

The rule confers wide discretion to the court and appointment of receiver cannot be
claimed as a matter of course. The discretion conferred by this rule must be exercised
after consideration of the whole of the circumstances of the case (Faiz Ahmed v. Bakhtear
Ahmed, 36 DLR (AD) 97). A receiver can be appointed even after passing of a decree where
it is necessary to safeguard the interest of the decree holder (Nur Mohammad v. KA Gani,
27 DLR 503).

According to Order 40 rule 3, every receiver shall:

 Furnish such security as the court thinks fit, duly to account for what he shall
receive in respect of the property;
 Submit his accounts at such periods and in such forms as the court directs;
 Pay the amount due from him as the court directs;
 Be responsible for any loss occasioned to the property by his wilful default or gross
negligence.

The Court may by general or specific order fix the amount to be paid as remuneration for
the service of the receiver which is said under Order 40 rule 2.

c) Inherent power of the court: The word ’inherent’ means existing and inseparable from
something, a permanent attribute or quality, an essential element, something intrinsic, or
essential, vested in or attached to a person or office as aright or privilege. Hence, inherent

7|Page
powers are such powers which are inalienable from courts and may be exercised by a
court to do full and complete justice between the parties.

Section 151 of the Code of Civil Procedure, 1908 says about inherent power of the court.
This section does not provided for anything new and merely furnishes the legislative
recognition of well-established principle that every court has inherent power to act ex
debito justitate (as an obligation out of the justice of the matter) to do that real and
substantial justice for the administration of justice which alone it exists or to prevent
abuse of the process of the Court.

It lengthens the hands of the court to pass any order to do justice when there is no other
remedy open to the aggrieved party (Abu Sama v. Abu Syed 48 DLR 141).

Section 151 specifies that inherent powers under section 151 may be exercised under the
following circumstances:

 For the ends of justice;

 To prevent the abuse of process of the Court
However, the circumstances where this power can be exercised are:

 If there is no adequate and specific provision in the Code to give any relief to any
particular circumstances (9 BLT (AD) 148);
 Every court can exercise that power even if such power has not been expressly
confirmed by law;
 To set aside an order found to be nullity (9 BLT 384).

This power cannot be exercise in the following situations:

 The court has no inherent power to do what is prohibited by the Code so as to

defeat a statutory provision of law;
 Inherent power cannot be exercised so as to conflict with the settled general
principles of law;
 This power cannot be exercised where the applicant has remedy provided
elsewhere in the code but has neglected to avail himself of it;
 This power cannot be exercised so as to circumvent the mandatory provisions of
this Code;

8|Page