The Code of Civil Procedure- 1908 | Preliminary

History of legislation

Before 1859 there was no law governing the procedure for the courts of the Civil Judicature. For the first time, the laws of procedure of the civil courts were codified in 1859. It underwent several amendments and was replaced by the Code enacted in 1877.

The third Code was enacted in 1882 repealing the Code of 1877. In 1908 the present Code was enacted repealing the Code of Civil Procedure of 1882. The present Code was amended from time to time and after the emergence of Bangladesh, the Code was amended by net VIII of 1973 and Act LIII of 1974 adapting it to the changed situation. After liberation of Bangladesh, delay in disposal of suits was gradually increasing.

To cope with the problem, substantive amendments were made by the Law Reforms Ordinance, 1978 and the Code of Civil Procedure (Amendment) Ordinance, 1983. By Act XXXII of 1989 certain provisions were made relating to temporary and ad interim injunction. In 2003 Parliament passed three amendment Acts. By Act III of 2003 provisions have been made for mediation and arbitration.

By Act XXIX of 2003 certain important amendments were made, but before the commencement of this Act, Act XL of 2003 was passed repealing Act XXXII of 1989 and Act XXIX of 2003 and making some amendments. Lastly, by Act VIII of 2006 further amendment has been made with the object of curbing the delay in adjudication of disputes.

Application of the Code.

The Code consolidates and amends the laws relating to the procedure of the Courts of Civil Judicature in Bangladesh. The Code regulates civil proceedings generally. If the proceeding involves assertion or enforcement of civil rights, it is a civil proceeding, whatever may be the source of the court's jurisdiction for enforcement of such right.' The Code does not speak of any particular court or courts except mentioning the Courts of Civil Judicature.

The Civil Courts Act, 1887 has provided for different types of civil courts for adjudication of civil disputes and the Code regulates the procedure of those courts. But there are a number of special laws dealing with disputes or matters of civil nature. The Code applies to all proceedings in the courts of civil judicature except that it does not affect the operation of those special laws or any special jurisdiction or power conferred or any special Corm of procedure prescribed by or under any other law.

The Code applies to the proceedings dealt with by the special laws to the extent permitted by those special laws. When the legislature confers a special or additional jurisdiction on a recognized court it may lay down the manner in which it is to be exercised, but if it is silent then all the rules of procedure that apply to its ordinary jurisdiction will be attracted with regard to the special jurisdiction.

The Code applies to the civil proceedings before the High Court so far as it is not restricted by any special Law or any constitution.

But the Appellate Division is not bound by the provisions of the code; it has its own rules framed by it under the provisions of article 107 of the Constitution. If any matter is not covered by its rules, the Appellate Division adopts a procedure keeping in view the procedure prescribed by the Code.

The Code is applicable in the entire territory of Bangladesh. In a case it was held that the Code has no application in Chittagong Hill Track. But contrary view was taken in a subsequent decision holding the earlier decision to be per incuriam.