CODE OF
CIVIL PROCEDURE, 1908 (Amended Upto 2023)
ACT NO. 5 OF 1908
[21st
March, 1908]
An Act to consolidate and
amend the laws relating to the procedure of the Courts of Civil Judicature.
WHEREAS it is expedient to
consolidate and amend the laws relating to the procedure of the Courts of Civil
Judicature: It is hereby enacted as follows:
PRELIMINARY
Section - 1. Short title, commencement and extent.
(1)
This Act may be cited as the Code of Civil
Procedure, 1908.
(2)
It shall come into force on the first day of
January, 1909.
[(3)
It extends to the whole of India except-
(a)
[* *
* * *]
(b)
the State of Nagaland and the tribal areas:
Provided that the State
Government concerned may, by notification in the Official Gazette, extend the
provisions of this Code or any of them to the whole or part of the State of
Nagaland or such tribal areas, as the case may be, with such supplemental,
incidental or consequential modifications as may be specified in the
notification.
Explanation. - In this
clause, “tribal areas” means the territories which, immediately before the 21st
day of January, 1972, were included in the tribal areas of Assam as referred to
in paragraph 20 of the Sixth Schedule to the Constitution.
(4) In relation to the Amindivi Islands, and the
East Godavari, West Godavari and Visakhapatnam Agencies in the State of Andhra
Pradesh and the Union Territory of Lakshadweep, the application of this Code
shall be without prejudice to the application of any rule or regulation for the
time being in force in such Islands, Agencies or such Union Territory, as the
case may be, relating to the application of this Code.]
Section - 2. Definitions.
In this Act, unless there is anything repugnant in the subject or context,-
(1)
“Code” includes rules;
(2)
“decree” means the formal expression of an
adjudication which, so far as regards the Court expressing it, conclusively
determines the rights of the parties with regard to all or any of the matters
in controversy in the suit and may be either preliminary or final. It shall be
deemed to include the rejection of a plaint and the determination of any
question within ***
section 144, but shall not include-
(a)
any adjudication from which an appeal lies as
an appeal from an order, or
(b)
any order of dismissal for default.
Explanation. A decree is
preliminary when further proceedings have to be taken before the suit can be
completely disposed of. It is final when such adjudication completely disposes
of the suit. It may be partly preliminary and partly final;
(3)
“decree-holder” means any person in whose
favour a decree has been passed or an order capable of execution has been made;
(4)
“district” means the local limits of the
jurisdiction of a principal Civil Court of original jurisdiction (hereinafter
called a “District Court”), and includes the local limits of the ordinary
original civil jurisdiction of a High Court;
[(5)
“foreign Court” means a Court situate outside India and not established or
continued by the authority of the Central Government;]
(6)
“foreign judgment” means the judgment of a foreign Court;
(7)
“Government Pleader” includes any officer appointed by the State Government to
perform all or any of the functions expressly imposed by this Code on the
Government Pleader and also any pleader acting under the directions of the
Government Pleader;
[(7A)
“High Court” in relation to the Andaman and Nicobar Islands, means the High
Court in Calcutta;
(7B)
“India”, except in sections 1, 29, 43, 44, [44A,]
78, 79, 82, 83 and 87A, means the territory of India excluding the State of
Jammu and Kashmir;]
(8)
“Judge” means the presiding officer of a Civil Court;
(9)
“judgment” means the statement given by the Judge of the grounds of a decree or
order;
(10)
“judgment-debtor” means any person against whom a decree has been passed or an
order capable of execution has been made;
(11)
“legal representative” means a person who in law represents the estate of a
deceased person, and includes any person who intermeddles with the estate of
the deceased and where a party sues or is sued in a representative character
the person on whom the estate devolves on the death of the party so suing or
sued;
(12)
“mesne profits” of property means those profits which the person in wrongful
possession of such property actually received or might with ordinary diligence
have received therefrom, together with interest on such profits, but shall not
include profits due to improvements made by the person in wrongful possession;
(13)
“movable property” includes growing crops;
(14)
“order” means the formal expression of any decision of a Civil Court which is
not a decree;
(15)
“pleader” means any person entitled to appear and plead for another in Court,
and includes an advocate, a vakil and an attorney of a High Court;
(16)
“prescribed” means prescribed by rules;
(17)
“public officer” means a person falling under any of the following
descriptions, namely:-
(a)
every Judge;
(b)
every member of [an
All-India Service];
(c)
every commissioned or gazetted officer in the
military [naval
or air] forces of. [the
Union] ***
while serving under the Government;
(d)
Every officer of a court of Justice whose
duty it is, as such officer, to investigate or report on any matter of law or
fact, or to make, authenticate or keep any document, or to take charge or
dispose of any property, or to execute any judicial process, or to administer
any oath, or to interpret, or to preserve order, in the Court, and every person
especially authorised by a court of Justice to perform any of such duties;
(e)
every person who holds any office by virtue
of which he is empowered to place or keep any person in confinement;
(f)
every officer of the Government whose duty it
is, as such officer, to prevent offences, to give information of offences, to
bring offenders to justice, or to protect the public health, safety or
convenience;
(g)
every officer whose duty it is, as such
officer, to take, receive, keep or expend any property on behalf of the
Government, or to make any survey, assessment or contract on behalf of the
Government, or to execute any revenue process, or to investigate, or to report
on, any matter affecting the pecuniary interests of the Government, or to make,
authenticate or keep any document relating to the pecuniary interests of the
Government, or to prevent the infraction of any law for the protection of the
pecuniary interests of the Government; and
(h)
every officer in the service or pay of the
Government, or remunerated by fees or commission for the performance of any
public duty;
(18)
“rules” means rules and forms contained in the First Schedule or made under
section 122 or section 125;
(19)
“share in a corporation” shall be deemed to include stock, debenture stock,
debentures or bonds; and
(20)
“signed”, save in the case of a judgment or decree, includes stamped.
[* *
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Section - 3. Subordination of Courts.
For the purposes of this
Code, the District Court is subordinate to the High Court, and every Civil
Court of a grade inferior to that of a District Court and every Court of Small
Causes is subordinate to the High Court and District Court.
State Amendment
Punjab
Amendment
in section 3 of Act V of 1908.- In the Code of Civil
Procedure, 1908 (V of 1908), for brevity referred to as the Act, in section 3,
for the words “Court of Small Causes”, the words “Court of Small Claims and
Minor Offences” shall be substituted.
[Vide Punjab Act XIV of
2018]
Section - 4. Savings.
(1)
In the absence of any specific provision to
the contrary, nothing in this Code shall be deemed to limit or otherwise affect
any special or local law now in force or any special jurisdiction or power
conferred, or any special form of procedure prescribed, by or under any other
law for the time being in force.
(2)
In particular and without prejudice to the
generality of the proposition contained in sub-section (1), nothing in this
Code shall be deemed to limit or otherwise affect any remedy which a landholder
or landlord may have under any law for the time being in force for the recovery
of rent of agricultural land from the produce of such land.
Section - 5. Application of the Code to Revenue Courts.
(1)
Where any Revenue Courts are governed by the
provisions of this Code in those matters of procedure upon which any special
enactment applicable to them is silent, the State Government ***
may, by notification in the Official Gazette, declare that any portions of
those provisions which are not expressly made applicable by this Code shall not
apply to those Courts, or shall only apply to them with such modifications as
the State Government ***
may prescribe.
(2)
“Revenue Court” in sub-section (1) means a
Court having jurisdiction under any local law to entertain suits or other
proceedings relating to the rent, revenue or profits of land used for
agricultural purposes, but does not include a Civil Court having original
jurisdiction under this Code to try such suits or proceedings as being suits or
proceedings of a civil nature.
Section - 6. Pecuniary jurisdiction.
Save in so far as is
otherwise expressly provided, nothing herein contained shall operate to give
any Court jurisdiction over suits the amount or value of the subject-matter of
which exceeds the pecuniary limits (if any) of its ordinary jurisdiction.
Section - 7. Provincial Small Cause Courts.
The following provisions
shall not extend to Courts constituted under the Provincial Small Cause Courts
Act, 1887(9 of 1887) [or
under the Berar Small Cause Courts Law, 1905], or to Courts exercising the
jurisdiction of a Court of Small Causes [under
the said Act or Law], [or
to Courts in [any
part of India to which the said Act does not extend] exercising a corresponding
jurisdiction that is to say,-
(a)
so much of the body of the Code as relates to-
(i)
suits excepted from the cognizance of a Court
of Small Causes;
(ii)
the execution of decrees in such suits;
(iii)
the execution of decrees against immovable
property; and
(b)
the following sections, that is to say,
section 9, sections 91 and 92, sections 94 and 95 [so
far as they authorize or relate to];
(i)
orders for the attachment of immovable
property,
(ii)
injunctions,
(iii)
the appointment of a receiver of immovable
property, or
(iv)
the interlocutory orders to in clause (e) of
section 94], and sections 96 to 112 and 115.
State Amendment
Punjab
Omission
of section 7 of Act V of 1908.- In the Act, section 7 shall
be omitted.
[Vide Punjab Act XIV of 2018]
Section - 8. Presidency Small Cause Courts.
Save as provided in sections
24, 38 to 41, 75, clauses (a), (b) and (c), 76, [77,
157 and 158], and by the Presidency Small Cause Courts Act, 1882 (15 of 1882),
the provisions in the body of this Code shall not extend to any suit or
proceeding in any Court of Small Causes established in the towns of Calcutta,
Madras and Bombay:
[Provided
that:-
(1)
the High Courts of Judicature at Fort
William, Madras and Bombay, as the case may be, may from time to time, by notification
in the Official Gazette, direct
that any such provisions not inconsistent with the express provisions of the
Presidency Small Cause Courts Act, 1882 (15 of 1882), and with such
modifications and adaptations as may be specified in the notification, shall
extend to suits or proceedings or any class of suits or proceedings in such
Court;
(2)
all rules heretofore made by any of the said
High Courts under section 9 of the Presidency Small Cause Courts Act, 1882 (15
of 1882) shall be deemed to have been validly made.]
PART
I
SUITS
IN GENERAL JURISDICTION OF THE COURTS AND Res Judicata
Section - 9. Courts to try all civil suits unless barred.
The Courts shall (subject to the provisions herein contained) have jurisdiction
to try all suits of a civil nature excepting suits of which their cognizance is
either expressly or impliedly barred.
[Explanation
I].- A suit in which the right to property or to an office is contested is a
suit of a civil nature, notwithstanding that such right may depend entirely on the
decision of questions as to religious rites or ceremonies.
[Explanation
II].- For the purposes of this section, it is immaterial whether or not any
fees are attached to the office referred to in Explanation I or whether or not
such office is attached to a particular place.]
STATE
AMENDMENTS
Maharashtra.
Section 9A of the Code of
Civil Procedure, 1908, in its application to the State of Maharashtra
(hereinafter referred to as “the principal Act”), shall be deleted.
[Vide Maharashtra Act 61 of
2018, sec. 2.]
Notwithstanding the deletion
of section 9A of the principal Act,
(1)
where consideration of a preliminary issue
framed under section 9A is pending on the date of commencement of the Code of
Civil Procedure (Maharashtra Amendment) Act, 2018 (hereinafter, in this
section, referred to as “the Amendment Act”), the said issue shall be deemed to
be an issue framed under Order XIV of the principal Act and shall be decided by
the Court, as it deems fit, along with all other issues, at the time of final
disposal of the suit itself :
Provided that, the evidence,
if any, led by any party or parties to the suit, on the preliminary issue so
framed under section 9A, shall be considered by the Court along with evidence,
if any, led on other issues in the suit, at the time of final disposal of the
suit itself;
(2)
in all the cases, where a preliminary issue
framed under section 9A has been decided, holding that the Court has
jurisdiction to entertain the suit, and a challenge to such decision is pending
before a revisional Court, on the date of commencement of the Amendment Act,
such revisional proceedings shall stand abated:
Provided that, where a
decree in such suit is appealed from any error, defect or irregularity in the
order upholding jurisdiction shall be treated as one of the ground of objection
in the memorandum of appeal as if it had been included in such memorandum;
(3)
in all cases, where a preliminary issue
framed under section 9A has been decided, holding that the Court has no
jurisdiction to entertain the suit, and a challenge to such decision is pending
before an appellate or revisional Court, on the date of commencement of the
Amendment Act, such appellate or revisional proceedings shall continue as if
the Amendment Act has not been enacted and section 9A has not been deleted:
Provided that, in case the
appellate or revisional Court, while partly allowing such appeal or revision,
remands the matter to the trial Court for reconsideration of the preliminary
issue so framed under section 9A, upon receipt of these proceedings by the
trial Court, all the provisions of the principal Act shall apply;
(4)
in all cases, where an order granting an
ad-interim relief has been passed under sub-section (2) of section 9A prior to
its deletion, such order shall be deemed to be an ad-interim order made under
Order XXXIX of the principal Act and the Court shall, at the time of deciding
the application in which such an order is made, either confirm or vacate or
modify such order.
[Vide Maharashtra Act 61 of
2018, sec. 3.]
Maharashtra.
In section 3 of the Code of
Civil Procedure (Maharashtra Amendment) Act, 2018, for clause (1), the
following clause shall be substituted and shall be deemed to have been
substituted with effect from 27th June 2018, being the date of commencement of
the said Act, namely:
“(1)
where consideration of a preliminary issue framed under section 9A is pending
on the date of commencement of the Code of Civil Procedure (Maharashtra
Amendment) Act, 2018 (hereinafter, in this section, referred to as “the
Amendment Act”), the said issue shall be decided and disposed of by the Court
under section 9A, as if the said section 9A has not been deleted;”.
[Vide Maharashtra Act 72 of
2018, s. 2 (w.e.f. 27-6-2018.)]
Punjab
Amendment
in section 9 of Act V of 1908.- In the Act, in section 9,
after the words “impliedly barred”, the words “or for which a general or a
special law is in force” shall be inserted.
[Vide Punjab Act XIV of
2018]
Section - 10. Stay of suit.
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 previously instituted suit between the same
parties, or between parties under whom they or any of them claim litigating
under the same title where such suit is pending in the same or any other Court
in [India]
have jurisdiction to grant the relief claimed, or in any Court beyond the
limits of [India]
established or continued by [the
Central Government ***.]
and having like jurisdiction, or before [the
Supreme Court].
Explanation. The pendency of
a suit in a foreign Court does not preclude the Courts in [India]
from trying a suit founded on the same cause of action.
Section - 11. Res judicata.
No Court shall try any suit
or issue in which the matter directly and substantially in issue has been
directly and substantially in issue in a former suit between the same parties,
or between parties under whom they or any of them claim, litigating under the
same title, in a Court competent to try such subsequent suit or the suit in
which such issue has been subsequently raised, and has been heard and finally
decided by such Court.
Explanation I.- The
expression “former suit” shall denote a suit which has been decided prior to a
suit in question whether or not it was instituted prior thereto.
Explanation II.- For the
purposes of this section, the competence of a Court shall be determined
irrespective of any provisions as to a right of appeal from the decision of
such Court.
Explanation III.- The matter
above referred to must in the former suit have been alleged by one party and
either denied or admitted, expressly or impliedly, by the other.
Explanation IV.- Any matter
which might and ought to have been made ground of defence or attack in such
former suit shall be deemed to have been a matter directly and substantially in
issue in such suit.
Explanation V.- Any relief
claimed in the plaint, which is not expressly granted by the decree, shall for
the purposes of this section, be deemed to have been refused.
Explanation VI.- Where
persons litigate bona fide in respect of a public right or of a private right
claimed in common for themselves and others, all persons interested in such
right shall, for the purposes of this section, be deemed to claim under the
persons so litigating .
[Explanation
VII.- The provisions of this section shall apply to a proceeding for the
execution of a decree and references in this section to any suit, issue or
former suit shall be construed as references, respectively, to a proceeding for
the execution of the decree, question arising in such proceeding and a former
proceeding for the execution of that decree.
Explanation VIII.- An issue
heard and finally decided by a Court of limited jurisdiction, competent to
decide such issue, shall operate as res judicata in a subsequent suit,
notwithstanding that such Court of limited jurisdiction was not competent to
try such subsequent suit or the suit in which such issue has been subsequently
raised.]
Section - 12. Bar to further suit.
Where a plaintiff is
precluded by rules from instituting a further suit in respect of any particular
cause of action, he shall not be entitled to institute a suit in respect of
such cause of action in any Court to which this Code applies.
State Amendment
Punjab
Amendment
in section 12 of Act V of 1908.- In the Act, in section 12,
after subsection (2), the following new subsection (3) shall be inserted:
“(3)
For purposes of the disposal of an
application under subsection (2), the Court may, in the interest of expeditious
disposal, apply such fair procedure as the circumstances of the case warrant,
and shall, unless, for reasons to be recorded it directs otherwise, order any
fact to be proved or disproved by affidavit.”
[Vide Punjab Act XIV of
2018]
Section - 13. When foreign judgment not conclusive.
A foreign judgment shall be
conclusive as to any matter thereby directly adjudicated upon between the same
parties or between parties under whom they or any of them claim litigating
under the same title except-
(a)
where it has not been pronounced by a Court
of competent jurisdiction;
(b)
where it has not been given on the merits of
the case;
(c)
where it appears on the face of the
proceedings to be founded on an incorrect view of international law or a
refusal to recognise the law of [India]
in cases in which such law is applicable;
(d)
where the proceedings in which the judgment
was obtained are opposed to natural justice;
(e)
where it has been obtained by fraud;
(f)
where it sustains a claim founded on a breach
of any law in force in [India].
Section - 14. Presumption as to foreign judgments.
The Court shall presume upon
the production of any document purporting to be a certified copy of a foreign
judgment, that such judgment was pronounced by a Court of competent
jurisdiction, unless the contrary appears on the record; but such presumption
may be displaced by proving want of jurisdiction.
PLACE
OF SUING
Section - 15. Court in which suits to be instituted.
Every suit shall be
instituted in the Court of the lowest grade competent to try it.
Section - 16. Suits to be instituted where subject-matter situate.
Subject to the pecuniary or
other limitations prescribed by any law, suits-
(a)
for the recovery of immovable property with
or without rent or profits,
(b)
for the partition of immovable property,
(c)
for foreclosure, sale or redemption in the
case of a mortgage of or charge upon immovable property,
(d)
or the determination of any other right to or
interest in immovable property,
(e)
for compensation for wrong to immovable
property,
(f)
for the recovery of movable property actually
under distraint or attachment, shall be instituted in the Court within the
local limits of whose jurisdiction the property is situate:
Provided that a suit to
obtain relief respecting, or compensation for wrong to, immovable property held
by or on behalf of the defendant may, where the relief sought can be entirely
obtained through his personal obedience, be instituted either in the Court
within the local limits of whose jurisdiction the property is situate, or in
the Court within the local limits of whose jurisdiction the defendant actually
and voluntarily resides, or carries on business, or personally works for gain.
Explanation.- In this
section “property” means property situate in [India].
Section - 17. Suits for immovable property situate within jurisdiction of different Courts.
Where a suit is to obtain
relief respecting, or compensation for wrong to, immovable property situate
within the jurisdiction of different Courts, the suit may be instituted in any
Court within the local limits of whose jurisdiction any portion of the property
is situate:
Provided that, in respect of
the value of the subject-matter of the suit, the entire claim is cognizable by
such Court.
Section - 18. Place of Institution of suit where local limits of jurisdiction of Courts are uncertain.
(1)
Where it is alleged to be uncertain within
the local limits of the jurisdiction of which of two or more Courts, any immovable
property is situate, any one of those Courts may, if satisfied that there is
ground for the alleged uncertainty, record a statement to that effect and
thereupon proceed to entertain and dispose of any suit relating to that
property, and its decree in the suit shall have the same effect as if the
property were situate within the local limits of its jurisdiction:
Provided that the suit is
one with respect to which the Court is competent as regards the nature and
value of the suit to exercise jurisdiction.
(2)
Where a statement has not been recorded under
sub-section (1), and an objection is taken before an Appellate or Revisional
Court that a decree or order in a suit relating to such property was made by a
Court not having jurisdiction where the property is situate, the Appellate or
Revisional Court shall not allow the objection unless in its opinion there was,
at the time of the institution of the suit, no reasonable ground for
uncertainty as to the court having jurisdiction with respect thereto and there
has been a consequent failure of justice.
Section - 19. Suits for compensation for wrongs to person or movables.
Where a suit is for
compensation for wrong done to the person or to movable property, if the wrong
was done within the local limits of the jurisdiction of one Court and the
defendant resides, or carries on business, or personally works for gain, within
the local limits of the jurisdiction of another Court, the suit may be
instituted at the option of the plaintiff in either of the said Courts.
Illustrations
(a)
A, residing in Delhi, beats B in Calcutta. B
may sue A either in Calcutta or in Delhi.
(b)
A, residing in Delhi, publishes in Calcutta
statements defamatory of B. B may sue A either in Calcutta or in Delhi.
Section - 20. Other suits to be instituted where defendants reside or cause of action arises.
Subject to the limitations
aforesaid, every suit shall be instituted in a Court within the local limits of
whose jurisdiction-
(a)
the defendant, or each of the defendants
where there are more than one, at the time of the commencement of the suit,
actually and voluntarily resides, or carries on business, or personally works
for gain; or
(b)
any of the defendants, where there are more
than one, at the time of the commencement of the suit, actually and voluntarily
resides, or carries on business, or personally works for gain, provided that in
such case either the leave of the Court is given, or the defendants who do not
reside, or carry on business, or personally works for gain, as aforesaid,
acquiesce in such institution; or
(c)
The cause of action, wholly or in part,
arises.
(d)
[* *
* * *]
[Explanation].-
A corporation shall be deemed to carry on business at its sole or principal
office in [India]
or, in respect of any cause of action arising at any place where it has also a
subordinate office, at such place.
Illustrations
(a)
A is a tradesman in Calcutta, B carries on
business in Delhi. B, by his agent in Calcutta, buys goods of A and requests A
to deliver them to the East Indian Railway Company. A delivers the goods
accordingly in Calcutta. A may sue B for the price of the goods either in
Calcutta, where the cause of action has arisen, or in Delhi, where B carries on
business.
(b)
A resides at Simla, B at Calcutta and C at
Delhi. A, B and C being together at Benaras, B and C make a joint promissory
note payable on demand, and deliver it to A. A may sue B and C at Benaras,
where the cause of action arose. He may also sue them at Calcutta, where B
resides, or at Delhi, where C resides but in each of these cases, if the
non-resident defendant objects, the suit cannot proceed without the leave of
the Court.
Section - 21. Objections to jurisdiction.
[(1)]
No objection as to the place of suing shall be allowed by any Appellate or
Revisional Court unless such objection was taken in the Court of first instance
at the earliest possible opportunity and in all cases where issues are settled
at or before such settlement, and unless there has been a consequent failure of
justice.
[(2)
No objection as to the competence of a Court with reference to the pecuniary
limits of its jurisdiction shall be allowed by any Appellate or Revisional
Court unless such objection was taken in the Court of first instance at the
earliest possible opportunity, and, in all cases where issues are settled, at
or before such settlement, and unless there has been a consequent failure of
justice.
(3) No objection as to the competence of the
executing Court with reference to the local limits of its jurisdiction shall be
allowed by any Appellate or Revisional Court unless such objection was taken in
the executing Court at the earliest possible opportunity, and unless there has
been a consequent failure of justice.]
Section - [21A. Bar on suit to set aside decree on objection as to place of suing.
No suit shall lie
challenging the validity of a decree passed in a former suit between the same
parties, or between the parties under whom they or any of them claim,
litigating under the same title, on any ground based on an objection as to the
place of suing.
Explanation.- The expression
“former suit” means a suit which has been decided prior to the decision in the
suit in which the validity of the decree is questioned, whether or not the
previously decided suit was instituted prior to the suit in which the validity
of such decree is questioned.]
Section - 22. Power to transfer suits which may be instituted in more than one Court.
Where a suit may be
instituted in any one of two or more Courts and is instituted in one of such
Courts, any defendant, after notice to the other parties, may, at the earliest
possible opportunity and in all cases where issues are settled at or before
such settlement, apply to have the suit transferred to another Court, and the
Court to which such application is made, after considering the objections of
the other parties (if any), shall determine in which of the several Courts
having jurisdiction the suit shall proceed.
Section - 23. To what Court application lies.
(1)
Where the several Courts having jurisdiction
are subordinate to the same Appellate Court, an application under section 22
shall be made to the Appellate Court.
(2)
Where such Courts are subordinate to
different Appellate Courts but to the same High Court, the application shall be
made to the said High Court.
(3)
Where such Courts are subordinate to
different High Courts, the application shall be made to the High Court within
the local limits of whose jurisdiction the Court in which the suit is brought
is situate.
Section - 24. General power of transfer and withdrawal.
(1)
On the application of any of the parties and
after notice to the parties and after hearing such of them as desired to be
heard, or of its own motion without such notice, the High Court or the District
Court may at any stage-
(a)
transfer any suit, appeal or other proceeding
pending before it for trial or disposal to any Court subordinate to it and
competent to try or dispose of the same, or
(b)
withdraw any suit, appeal or other proceeding
pending in any Court subordinate to it, and-
(i)
try or dispose of the same; or
(ii)
transfer the same for trial or disposal to
any Court subordinate to it and competent to try or dispose of the same; or
(iii)
retransfer the same for trial or disposal to
the Court from which it was withdrawn.
(2)
Where any suit or proceeding has been
transferred or withdrawn under sub-section (1), the Court which [is
thereafter to try or dispose of such suit or proceeding] may, subject to any
special directions in the case of an order of transfer, either retry it or
proceed from the point at which it was transferred or withdrawn.
[(3)
For the purposes of this section,-
(a)
Courts of Additional and Assistant Judges
shall be deemed to be subordinate to the District Court;
(b)
“proceeding” includes a proceeding for the
execution of a decree or order.]
(4) The Court trying any suit transferred or
withdrawn under this section from a Court of Small Causes shall, for the
purposes of such suit, be deemed to be a Court of Small Causes.
[(5)
A suit or proceeding may be transferred under this section from a Court which
has no jurisdiction to try it.]
State Amendment
Punjab
Amendment
in section 24 of Act V of 1908.- In the Act, in section 24,
subsection (4) shall be omitted.
[Vide Punjab Act XIV of
2018]
Section - [25. Power of Supreme Court to transfer suits, etc.
(1)
On the application of a party, and after
notice to the parties, and after hearing such of them as desire to be heard,
the Supreme Court may, at any stage, if satisfied that an order under this
section is expedient for the ends of justice, direct that any suit, appeal or
other proceeding be transferred from a High Court or other Civil Court in one
State to a High Court or other Civil Court in any other State.
(2)
Every application under this section shall be
made by a motion which shall be supported by an affidavit.
(3)
The Court to which such suit, appeal or other
proceeding is transferred shall, subject to any special directions in the order
of transfer, either retry it or proceed from the stage at which it was
transferred to it.
(4)
In dismissing any application under this
section, the Supreme Court may, if it is of opinion that the application was
frivolous or vexatious, order the applicant to pay by way of compensation to
any person who has opposed the application such sum, not exceeding two thousand
rupees, as it considers appropriate in the circumstances of the case.
(5)
The law applicable to any suit, appeal or
other proceeding transferred under this section shall be the law which the
Court in which the suit, appeal or other proceeding was originally instituted
ought to have applied to such suit, appeal or proceeding.]
INSTITUTION
OF SUITS
Section - 26. Institution of suits.-
[(1)]
Every suit shall be instituted by the presentation of a plaint or in such other
manner as may be prescribed.
[(2)
In every plaint, facts shall be proved by affidavit.]
[Provided
that such an affidavit shall be in the form and manner as prescribed under
Order VI of Rule 15A.]
SUMMONS
AND DISCOVERY
Section - 27. Summons to defendants.
Where a suit has been duly
instituted, a summons may be issued to the defendant to appear and answer the
claim and may be served in manner prescribed [on
such day not beyond thirty days from date of the institution of the suit.]
Section - 28. Service of summons where defendant resides in another State.
(1)
A summons may be sent for service in another
State to such Court and in such manner as may be prescribed by rules in force
in that State.
(2)
The Court to which such summons is sent
shall, upon receipt thereof, proceed as if it had been issued by such Court and
shall then return the summons to the Court of issue together with the record
(if any) of its proceedings with regard thereto.
[(3)
Where the language of the summons sent for service in another State is
different from the language of the record referred to in sub-section (2), a
translation of the record,-
(a)
in Hindi, where the language of the Court
issuing the summons is Hindi, or
(b)
in Hindi or English where the language of
such record is other than Hindi or English, shall also be sent together with
the record sent under that sub-section.]
Section - [29. Service of foreign summonses.
Summonses and other
processes issued by-
(a)
any Civil or Revenue Court established in any
part of India to which the provisions of this Code do not extend, or
(b)
any Civil or Revenue Court established or
continued by the authority of the Central Government outside India, or
(c)
any other Civil or Revenue Court outside
India to which the Central Government has, by notification in the Official
Gazette, declared the provisions of this section to apply, may be sent to the
Courts in the territories to which this Code extends, and served as if they
were summonses issued by such Courts.]
Section - 30. Power to order discovery and the like.
Subject to such conditions
and limitations as may be prescribed, the Court may, at any time, either of its
own motion or on the application of any party,-
(a)
make such orders as may be necessary or
reasonable in all matters relating to the delivery and answering of
interrogatories, the admission of documents and facts, and the discovery,
inspection, production, impounding and return of documents or other material
objects producible as evidence;
(b)
issue summonses to persons whose attendance
is required either to give evidence or to produce documents or such other
objects as aforesaid;
(c)
order any fact to be proved by affidavit.
State Amendment
Punjab
Amendment
in section 30 of Act V of 1908.- In the Act, in section 30,
for clause (c), the following shall be substituted:
“(c)
order any fact to be proved or disproved by affidavit.”.
[Vide Punjab Act XIV of
2018]
Section - 31. Summons to witness.
The provisions in sections
27, 28 and 29 shall apply to summonses to give evidence or to produce documents
or other material objects.
Section - 32. Penalty for default.
The Court may compel the
attendance of any person to whom a summons has been issued under section 30 and
for that purpose may-
(a)
issue a warrant for his arrest;
(b)
attach and sell his property;
(c)
impose a fine upon him [not
exceeding five thousand rupees];
(d)
order him to furnish security for his
appearance and in default commit him to the civil prison.
JUDGMENT
AND DECREE
Section - 33. Judgment and decree.
The Court, after the case
has been heard, shall pronounce judgment, and on such judgment a decree shall
follow.
State Amendment
Punjab
Substitution
of section 33 of Act V of 1908.- In the Act, for section 33,
the following shall be substituted:
“33. Judgment and decree.- The
Court, after the case has been heard, shall pronounce judgment maximum within
fifteen days and on such judgment a decree shall follow simultaneously.”.
[Vide Punjab Act XIV of
2018]
INTEREST
Section - 34. Interest.
(1)
Where and in so far as a decree is for the
payment of money, the Court may, in the decree, order interest at such rate as
the Court deems reasonable to be paid on the principal sum adjudged, from the
date of the suit to the date of the decree, in addition to any interest
adjudged on such principal sum for any period prior to the institution of the
suit, [with
further interest at such rate not exceeding six per cent. per annum as the
Court deems reasonable on such principal sum], from the date of the decree to
the date of payment, or to such earlier date as the Court thinks fit:
[Provided
that where the liability in relation to the sum so adjudged had arisen out of a
commercial transaction, the rate of such further interest may exceed six per
cent. per annum, but shall not exceed the contractual rate of interest or where
there is no contractual rate, the rate at which moneys are lent or advanced by
nationalised banks in relation to commercial transactions.
Explanation I. In this
sub-section, “nationalised bank” means a corresponding new bank as defined in
the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970 (5
of 1970).
Explanation II. For the
purposes of this section, a transaction is a commercial transaction, if it is
connected with the industry, trade or business of the party incurring the liability.]
(2)
Where such a decree is silent with respect to
the payment of further interest [on
such principal sum] from the date of the decree to the date of payment or other
earlier date, the Court shall be deemed to have refused such interest, and a
separate suit therefor shall not lie.
COSTS
Section - [35. Costs.
(1)
In relation to any Commercial dispute, the
Court, notwithstanding anything contained in any other law for the time being
in force or Rule, has the discretion to determine:
(a)
whether costs are payable by one party to
another;
(b)
the quantum of those costs; and
(c)
when they are to be paid.
Explanation.- For the
purpose of clause (a), the expression “costs” shall mean reasonable costs
relating to-
(i)
the fees and expenses of the witnesses
incurred;
(ii)
legal fees and expenses incurred;
(iii)
any other expenses incurred in connection
with the proceedings.
(2)
If the Court decides to make an order for
payment of costs, the general rule is that the unsuccessful party shall be
ordered to pay the costs of the successful party:
Provided that the Court may
make an order deviating from the general rule for reasons to be recorded in
writing.
Illustration
The Plaintiff, in his suit,
seeks a money decree for breach of contract, and damages. The Court holds that
the Plaintiff is entitled to the money decree. However, it returns a finding
that the claim for damages is frivolous and vexatious.
In such circumstances the
Court may impose costs on the Plaintiff, despite the Plaintiff being the
successful party, for having raised frivolous claims for damages.
(3)
In making an order for the payment of costs,
the Court shall have regard to the following circumstances, including-
(a)
the conduct of the parties;
(b)
whether a party has succeeded on part of its
case, even if that party has not been wholly successful;
(c)
whether the party had made a frivolous
counterclaim leading to delay in the disposal of the case;
(d)
whether any reasonable offer to settle is
made by a party and unreasonably refused by the other party; and
(e)
whether the party had made a frivolous claim
and instituted a vexatious proceeding wasting the time of the Court.
(4)
The orders which the Court may make under
this provision include an order that a party must pay–
(a)
a proportion of another party’s costs;
(b)
a stated amount in respect of another party’s
costs;
(c)
costs from or until a certain date;
(d)
costs incurred before proceedings have begun;
(e)
costs relating to particular steps taken in
the proceedings;
(f)
costs relating to a distinct part of the
proceedings; and
(g)
interest on costs from or until a certain
date.]
STATE
AMENDMENTS
Jammu and Kashmir and Ladakh
(UTs).-
In Section 35, in
sub-section (1) omit “Commercial”.
[Vide the Jammu and Kashmir
Reorganisation (Adaptation of Central Laws) Order, 2020, notification No. S.O.
1123(E) dated (18-3-2020) and vide Union Territory of Ladakh Reorganisation
(Adaptation of Central Laws) Order, 2020, Notification No. S.O. 3774(E), dated
(23-10-2020)].
Punjab
Amendment
in section 35 of Act V of 1908.- In the Act, in section 35,
for subsection (1), the following shall be substituted:
“(1)
Subject to such conditions and
limitations, as may be prescribed, and to the provisions of law for the time
being in force, the costs of an incident to all suits and other proceedings in
the suit including execution proceedings, shall follow the event, and the Court
shall have full power to determine by whom or out of which property and to what
extent such costs are to be paid, and to give all necessary directions for the
purpose aforesaid.
(1a)
The fact that the Court has no
jurisdiction to try the suit shall be no bar to exercising the powers under
subsection (1).”.
[Vide Punjab Act XIV of
2018]
Section - [35A. Compensatory costs in respect of false or vexatious claims or defences.
(1)
If in any suit or other proceedings [including
an execution proceeding but [excluding
an appeal or a revision] any party objects to the claim or defence on the
ground that the claim or defence or any part of it is, as against the objector,
false or vexatious to the knowledge of the party by whom it has been put
forward, and if thereafter, as against the objector, such claim or defence is
disallowed, abandoned or withdrawn in whole or in part, the Court, [if
it so thinks fit], may, after recording its reasons for holding such claim or
defence to be false or vexatious, make an order for the payment to the object
or by the party by whom such claim or defence has been put forward, of cost by
way of compensation.
[(2)
No Court shall make any such order for the payment of an amount exceeding [three
thousand rupees] or exceeding the limits of its pecuniary jurisdiction,
whichever amount is less:
Provided that where the
pecuniary limits of the jurisdiction of any Court exercising the jurisdiction
of a Court of Small Causes under the Provincial Small Cause Courts Act, 1887 (9
of 1887), [or
under a corresponding law in force in [any
part of India to which the said Act does not extend] and not being a Court
constituted [under
such Act or law], are less than two hundred and fifty rupees, the High Court
may empower such Court to award as costs under this section any amount not
exceeding two hundred and fifty rupees and not exceeding those limits by more
than one hundred rupees :
Provided, further, that the
High Court may limit the amount which any Court or class of Courts is empowered
to award as costs under this section.]
(3) No person against whom an order has been made
under this section shall, by reason thereof, be exempted from any criminal
liability in respect of any claim or defence made by him.
(4) The amount of any compensation awarded under
this section in respect of a false or vexatious claim or defence shall be taken
into account in any subsequent suit for damages or compensation in respect of
such claim or defence.]
STATE
AMENDMENTS
Jammu and Kashmir and Ladakh
(UTs).-
In Section 35A, omit
sub-section (2).
[Vide the Jammu and Kashmir
Reorganization (Adaptation of Central Laws) Order, 2020, notification No. S.O.
1123(E) dated (18-3-2020) and vide Union Territory of Ladakh Reorganisation
(Adaptation of Central Laws) Order, 2020, Notification No. S.O. 3774(E), dated
(23-10-2020)].
Uttar Pradesh
Amendment of section 35-A of
Act V of 1908.-In the Code of Civil Procedure, 1908
(hereinafter in this Chapter referred to as the principal Act) in section 35-A,
after sub- section (1), the following sub-section shall be inserted, namely:-
“Revision.-
(1-A)
The provisions of sub-section (1) shall mutatis mutandis apply to an appeal
where the appellate court confirms the decision of the trial court and the
trial court has not awarded, or has awarded insufficient, compensatory cost
under that sub- section.”
[Vide Uttar Pradesh Act 57
of 1976, s. 2]
Uttar Pradesh
Section 35-A or Schedule of
the Act.- (1) For the existing sub-section (1), the following shall
be substituted;
“(1)
If in any suit or other proceeding, including proceedings in execution, but not
being an appeal or revision, the court finds that the claim or defense or any
part thereof is false or vexatious to the knowledge of the party by whom it has
been put forward and if such claim or defense or such part is disallowed
abandoned or withdrawn in whole or in part, the court may, after recording its
reasons for holding such claim or defense to be false or vexatious, make an
order for the payment to the successful party of costs by way of compensation
irrespective of the decision on other issues in the case.”
[Vide Uttar Pradesh Act XXIV
of 1954, s. 3]
Punjab
Amendment
in section 35-A of Act V of 1908.- In the Act, in section 35-A,
in subsection (2):
(a)
for the words “twenty five thousand”, the
words “one hundred thousand” shall be substituted;
(b)
first proviso shall be omitted; and
(c)
in the second proviso, the expression “,
further,” shall be omitted.
Section - [35B. Costs for causing delay.
(1)
If, on any date fixed for the hearing of a
suit or for taking any step therein, a party to the suit-
(a)
fails to take the step which he was required
by or under this Code to take on that date, or
(b)
obtains an adjournment for taking such step
or for producing evidence or on any other ground, the Court may, for reasons to
be recorded, make an order requiring such party to pay to the other party such
costs as would, in the opinion of the Court, be reasonably sufficient to
reimburse the other party in respect of the expenses incurred by him in
attending the Court on that date, and payment of such costs, on the date next
following the date of such order, shall be a condition precedent to the further
prosecution of-
(a)
the suit by the plaintiff, where the
plaintiff was ordered to pay such costs,
(b)
the defence by the defendant, where the
defendent was ordered to pay such costs.
Explanation.- Where separate
defences have been raised by the defendant or groups of defendants, payment of
such costs shall be a condition precedent to the further prosecution of the
defence by such defendants or groups of defendants as have been ordered by the
Court to pay such costs.
(2)
The costs, ordered to be paid under
sub-section (1), shall not, if paid, be included in the costs awarded in the
decree passed in the suit; but, if such costs are not paid, a separate order
shall be drawn up indicating the amount of such costs and the names and
addresses of the persons by whom such costs are payable and the order so drawn
up shall be executable against such persons. ]
PART
II EXECUTION GENERAL
Section - [36. Application to orders.
The provisions of this Code
relating to the execution of decrees (including provisions relating to payment
under a decree) shall, so far as they are applicable, be deemed to apply to the
execution of orders (including payment under an order).]
Section - 37. Definition of Court which passed a decree.
The expression “Court which
passed a decree,” or words to that effect, shall, in relation to the execution
of decrees, unless there is anything repugnant in the subject or context, be
deemed to include,-
(d)
where the decree to be executed has been
passed in the exercise of appellate jurisdiction, the Court of first instance,
and
(e)
where the Court of first instance has ceased
to exist or to have jurisdiction to execute it, the Court which, if the suit
wherein the decree was passed was instituted at the time of making the
application for the execution of the decree, would have jurisdiction to try
such suit.
[Explanation.-The
Court of first instance does not cease to have jurisdiction to execute a decree
merely on the ground that after the institution of the suit wherein the decree
was passed or after the passing of the decree, any area has been transferred
from the jurisdiction of that Court to the jurisdiction of any other Court;
but, in every such case, such other Court shall also have jurisdiction to
execute the decree, if at the time of making the application for execution of
the decree it would have jurisdiction to try the said suit.]
COURTS
BY WHICH DECREES MAY BE EXECUTED
Section - 38. Court by which decree may be executed.
A decree may be executed
either by the Court which passed it, or by the Court to which it is sent for
execution.
Section - 39. Transfer of decree.
(1)
The Court which passed a decree may, on the
application of the decree- holder, send it for execution to another Court [of
competent jurisdiction],-
(a)
if the person against whom the decree is
passed actually and voluntarily resides or carries on business, or personally
works for gain, within the local limits of the jurisdiction of such other
Court, or
(b)
if such person has not property within the
local limits of the jurisdiction of the Court which passed the decree
sufficient to satisfy such decree and has property within the local limits of
the jurisdiction of such other Court, or
(c)
if the decree directs the sale or delivery of
immovable property situate outside the local limits of the jurisdiction of the
Court which passed it, or
(d)
if the Court which passed the decree
considers for any other reason, which it shall record in writing, that the
decree should be executed by such other Court.
(2)
The Court which passed a decree may of its
own motion send it for execution to any subordinate Court of competent
jurisdiction.
[(3)
For the purposes of this section, a Court shall be deemed to be a Court of
competent jurisdiction if, at the time of making the application for the
transfer of decree to it, such Court would have jurisdiction to try the suit in
which such decree was passed.]
[(4)
Nothing in this section shall be deemed to authorise the Court which passed a
decree to execute such decree against any person or property outside the local
limits of its jurisdiction.]
STATE
AMENDMENT
Uttar Pradesh.
Amendment of section 39 of
Act no. 5 of 1908.- In section 39 of the Code of Civil
Procedure, 1908, hereinafter referred to as the said Code, for sub-section (3),
the following sub-section shall be substituted, namely:
“(3)
For the purposes of this section, a Court
shall be deemed to be a Court of competent jurisdiction of the amount or value
of the subject-matter of the suit wherein the decree was passed does not exceed
the pecuniary limits, if any, of its ordinary jurisdiction at the time of
making the application for the transfer of decree to it, notwithstanding that
it had otherwise no jurisdiction to try the suit.”
[Vide Uttar Pradesh Act 31
of 1978, s. 2]
Sikkim
Amendment
of section 39 :-
In section 39 of the Code of
Civil Procedure, 1908 (hereinafter referred to as the principal Act), after
sub-section (3), the following sub-section shall be inserted, namely:-
“(4)
Nothing in this section shall be deemed
to authorise the Court which passed a decree to execute such decree against any
person or property outside the local limits of its jurisdiction.”
[Vide Sikkim Act 22 of 2002]
Section - 40. Transfer of decree to Court in another State.
Where a decree is sent for execution
in another State, it shall be sent to such Court and executed in such manner as
may be prescribed by rules in force in that State.
Section - 41. Result of execution proceedings to be certified.
The Court to which a decree
is sent for execution shall certify to the Court which passed it the fact of
such execution, or where the former Court fails to execute the same the
circumstances attending such failure.
Section - 42. Powers of Court in executing transferred decree.
[(1)]
The Court executing a decree sent to it shall have the same powers in executing
such decree as if it had been passed by itself. All persons is disobeying or
obstructing the execution of the decree shall be punishable by such Court in
the same manner as if it had passed the decree. And its order in executing such
decree shall be subject to the same rules in respect of appeal as if the decree
had passed by itself.
[(2)
Without prejudice to the generality of the provisions of sub-section (1), the
powers of the Court under that sub-section shall include the following powers
of the Court which passed the decree, namely:-
(a)
power to send the decree for execution to
another Court under section 39;
(b)
power to execute the decree against the legal
representative of the deceased judgment-debtor under section 50;
(c)
power to order attachment of a decree.
(3) A Court passing an order in exercise of the
powers specified in sub-section (2) shall send a copy thereof to the Court
which passed the decree.
(4) Nothing in this section shall be deemed to
confer on the Court to which a decree is sent for execution any of the
following powers, namely:
(a)
power to order execution at the instance of
the transferee of the decree;
(b)
in the case of a decree passed against a
firm, power to grant leave to execute such decree against any person, other
than such a person as is referred to in clause (b), or clause (c) of sub-rule
(1) of rule 50 of Order XXI.]
STATE
AMENDMENT
Uttar Pradesh.
Substitution of new section
for section 42 of Act V of 1908.- For section 42 of the Code
of Civil Procedure, 1908, as amended in its application to Uttar Pradesh
(hereinafter referred to as the said Code) the following section shall be
substituted and be deemed to have been substituted with affect from December 2,
1968,namely :-
“42.
Power of court in executing transferred decree.-
(1)
The Court executing a decree sent to it shall
have the same powers in executing such decree as if it had been passed by
itself. All persons disobeying or obstructing the execution of the decree shall
be punishable by such Court in the same manner as if it had passed the decree,
and its order in executing such decree shall be subject to the same rules in
respect of appeal as if the decree had been passed by itself.
(2)
Without prejudice to the generality of the
provisions of sub- section (1), the powers of the Court under that sub-section
shall include the following powers of the Court which passed the decree, namely-
(a)
power to send the decree for execution to
another Court under section 39;
(b)
power to execute the decree against the legal
representative of the deceased judgment-debtor under section 50;
(c)
power to order attachment of a decree;
(d)
power to decide any question relating to the
bar of limitation to the executability of the decree;
(e)
power to record payment or adjustment under
rule 2 of Order XXI;
(f)
power to order stay of execution under rule
29 of Order XXI;
(g)
in the case of a decree passed against a
firm, power to grant leave to execute such decree against any person other than
a person as is referred to in clause (b) or clause (c) of sub-rule (1) of rule
50 of Order XXI.
(3)
A Court passing an order in exercise of the
powers specified in sub-section (2) shall send a copy thereof to the Court
which passed the decree.
(4)
Nothing in this section shall be deemed to
confer on the Court to which a decree is sent for execution, the power to order
execution at the instance of the transferee of a decree.”
[Vide Uttar Pradesh Act 14
of 1970, s. 2]
Section - [43. Execution of decrees passed by Civil Courts in places to which this Code does not extend.
Any decree passed by any
Civil Court established in any part of India to which the provisions of this
Code do not extend, or by any Court established or continued by the authority
of the Central Government outside India, may, if it cannot be executed within
the jurisdiction of the Court by which it was passed, be executed in the manner
herein provided within the jurisdiction of any Court in the territories to
which this Code extends.]
Section - [44. Execution of decrees passed by Revenue Courts in places to which this Code does not extend.
The State Government may, by
notification in the Official Gazette, declare that the decrees of any Revenue
Court in any part of India to which the provisions of this Code do not extend,
or any class of such decrees, may be executed in the State as if they had been
passed by Courts in that State.]
Section - [44A. Execution of decrees passed by Courts in reciprocating territory.
(1)
Where a certified copy of a decree of any of
the superior Courts of ***
any reciprocating territory has been filed in a District Court, the decree may
be executed in [India]
as if it had been passed by the District Court.
(2)
Together with the certified copy of the
decree shall be filed a certificate from such superior Court stating the
extent, if any, to which the decree has been satisfied or adjusted and such
certificate shall, for the purposes of proceedings under this section, be
conclusive proof of the extent of such satisfaction or adjustment.
(3)
The provisions of section 47 shall as from
the filing of the certified copy of the decree apply to the proceedings of a
District Court executing a decree under this section, and the District Court
shall refuse execution of any such decree, if it is shown to the satisfaction
of the Court that the decree falls within any of the exceptions specified in
clauses (a) to (f) of section 13.
[Explanation
1.- “Reciprocating territory” means any country or territory outside India
which the Central Government may, by notification in the Official Gazette,
declare to be a reciprocating territory for the purposes of this section; and
“superior Courts”, with reference to any such territory, means such Courts as
may be specified in the said notification.
Explanation 2.- “Decree”
with reference to a superior Court means any decree or judgment of such Court
under which a sum of money is payable, not being a sum payable in respect of
taxes or other charges of a like nature or in respect of a fine or other
penalty, but shall in no case include an arbitration award, even if such an
award is enforceable as a decree or judgment.]]
State Amendment
Punjab
Substitution
of section 44-A of Act V of 1908.- In the Act, in section 44-A,
the following shall be substituted:
“44-A. Execution of decrees passed by
Courts in the reciprocating territory.- (1) Where a certified copy
of a decree of any of the Superior Courts of the reciprocating territory has
been filed in a District Court, the decree may be executed in Pakistan as if it
had been passed by the District Court.
(2) Together with the
certified copy of the decree shall be filed a certificate from such superior
Court stating the extent, if any, to which the decree has been satisfied or
adjusted and such certificate shall, for the purposes of proceedings under this
section, be conclusive proof of the extent of such satisfaction or adjustment.
(3) The provisions of
section 47 shall as from the filing of the certified copy of the decree apply
to the proceedings of a District Court executing a decree under this section,
and the District Court shall refuse execution of any such decree, if it is
shown to the satisfaction of the Court that the decree falls within any of the
exceptions specified in clauses (a) to (f) of section 13.
Explanation 1.
“Reciprocating territory” means such country or territory as the Federal
Government may, from time to time, by notification in the official Gazette,
declare to be reciprocating territory for the purposes of this section; and
“superior Courts”, with reference to any such territory, means such Courts as
may be specified in the said notification.
Explanation 2. “Decree”,
with reference to a superior Court, means any decree or judgment of such Court
under which a sum of money is payable, not being a sum payable in respect of
taxes or other charges of a like nature or in respect of a fine or other
penalty, and does not include an arbitration award, even if such award is
enforceable as a decree or judgment.”.
Section - [45. Execution of decrees outside India.
So much of the foregoing
sections of this Part as empowers a Court to send a decree for execution to
another Court shall be construed as empowering a Court in any State to send a
decree for execution to any Court established ***
by the authority of the Central Government [outside
India] to which the State Government has by notification in the Official
Gazette declared this section to apply.]
Section - 46. Precepts.
(1)
Upon the application of the decree-holder the
Court which passed the decree may, whenever it thinks fit, issue a precept to
any other Court which would be competent to execute such decree to attach any
property belonging to the judgment-debtor and specified in the precept.
(2)
The Court to which a precept is sent shall
proceed to attach the property in the manner prescribed in regard to the
attachment of property in execution of a decree:
Provided that no attachment
under a precept shall continue for more than two months unless the period of
attachment is extended by an order of the Court which passed the decree or
unless before the determination of such attachment the decree has been
transferred to the Court by which the attachment has been made and the
decree-holder has applied for an order for the sale of such property.
QUESTIONS
TO BE DETERMINED BY COURT EXECUTING DECREE
Section - 47. Questions to be determined by the Court executing decree.
(1)
All questions arising between the parties to
the suit in which the decree was passed, or their representatives, and relating
to the execution, discharge or satisfaction of the decree, shall be determined
by the Court executing the decree and not by a separate suit.
(2)
[* *
* * *]
(3)
Where a question arises as to whether any
person is or is not the representative of a party, such question shall, for the
purposes of this section, be determined by the Court.
[Explanation
I.-For the purposes of this section, a plaintiff whose suit has been dismissed
and a defendant against whom a suit has been dismissed are parties to the suit.
Explanation II. (a) For the
purposes of this section, a purchaser of property at a sale in execution of a
decree shall be deemed to be a party to the suit in which the decree is passed;
and
(b) all questions relating
to the delivery of possession of such property to such purchaser or his
representative shall be deemed to be questions relating to the execution,
discharge or satisfaction of the decree within the meaning of this section.]
STATE
AMENDMENT
Uttar Pradesh.
Amendment of section 47.- In
section 47 of the principal Act, Explanation II inserted by the U. P. Civil
Laws (Reforms and Amendment) Act, 1954, shall be omitted.
[Vide Uttar Pradesh Act 57
of 1976, s. 3]
LIMIT
OF TIME FOR EXECUTION
Section - 48. [84][Execution barred in certain cases.]
[* * *]
STATE
AMENDMENT
Rajasthan.
Insertion of new section 48
A.- After section 48 of the Code of Civil Procedure, 1908 (Central Act V of
1908), in its application thereof to the State of Rajasthan, the following new
section shall be, and be deemed always to have been inserted, namely:-
"48-A-
Varied application of section 48.- For the purposes of the
application of section 48 to the State of Rajasthan;-
(i)
a decree, made before the twenty-fifth day of
January, 1950, in those parts of Rajasthan where a corresponding provision did
not then exist, shall, unless it shall have becomr time-barred or otherwise
infructuous before the said day in accordance with any law then prevailing in
those parts, be deemed to have been made on the said day, and
(ii)
Where a decree might have been made before
the twenty-fifth day of January, 1950 in those parts of Rajasthan where a
corresponding provision then existed, with a period longer than twelve years
provided therein such longer period or the period of twelve years form the said
day whichever expires first shall be the period after which, according to
section 48, no order for execution shall be made".
[Vide Rajasthan Act XX of
1952, s. 2]
TRANSFEREES
AND LEGAL REPRESENTATIVES
Section - 49. Transferee.
Every transferee of a decree
shall hold the same subject to the equities (if any) which the judgment-debtor
might have enforced against the original decree-holder.
Section - 50. Legal representative.
(1)
Where a judgment-debtor dies before the
decree has been fully satisfied, the holder of the decree may apply to the
Court which passed it to execute the same against the legal representative of
the deceased.
(2)
Where the decree is executed against such
legal representative, he shall be liable only to the extent of the property of the
deceased which has come to his hands and has not been duly disposed of; and,
for the purpose of ascertaining such liability, the Court executing the decree
may, of its own motion or on the application of the decree-holder, compel such
legal representative to produce such accounts as it thinks fit.
PROCEDURE
IN EXECUTION
Section - 51. Powers of Court to enforce execution.
Subject to such conditions
and limitations as may be prescribed, the Court may, on the application of the
decree-holder, order execution of the decree:
(a)
by delivery of any property specifically
decreed;
(b)
by attachment and sale or by the sale without
attachment of any property;
(c)
by arrest and detention in prison [for
such period not exceeding the period specified in section 58, where arrest and
detention is permissible under that section];
(d)
by appointing a receiver; or
(e)
in such other manner as the nature of the
relief granted may require:
[Provided
that, where the decree is for the payment of money, execution by detention in
prison shall not be ordered unless, after giving the judgment-debtor an
opportunity of showing cause why he should not be committed to prison, the
Court, for reasons recorded in writing, is satisfied-
(a)
that the judgment-debtor, with the object or
effect of obstructing or delaying the execution of the decree,-
(i)
is likely to abscond or leave the local
limits of the jurisdiction of the Court, or
(ii)
has, after the institution of the suit in
which the decree was passed, dishonestly transferred, concealed, or removed any
part of his property, or committed any other act of bad faith in relation to
his property, or
(b)
that the judgment-debtor has, or has had
since the date of the decree, the means to pay the amount of the decree or some
substantial part thereof and refuses or neglects or has refused or neglected to
pay the same, or
(c)
that the decree is for a sum for which the
judgment-debtor was bound in a fiduciary capacity to account.
Explanation.- In the
calculation of the means of the judgment-debtor for the purposes of clause (b),
there shall be left out of account any property which, by or under any law or
custom having the force of law for the time being in force, is exempt from
attachment in execution of the decree.]
Section - 52. Enforcement of decree against legal representative.
(1)
Where a decree is passed against a party as
the legal representative of a deceased person, and the decree is for the
payment of money out of the property of the deceased, it may be executed by the
attachment and sale of any such property.
(2)
Where no such property remains in the
possession of the judgment-debtor and he fails to satisfy the Court that he has
duly applied such property of the deceased as is proved to have come into his
possession, the decree may be executed against the judgment-debtor to the
extent of the property in respect of which he has failed so to satisfy the
Court in the same manner as if the decree had been against him personally.
Section - 53. Liability of ancestral property.
For the purposes of section
50 and section 52, property in the hands of a son or other descendant which is
liable under Hindu law for the payment of the debt of a deceased ancestor, in
respect of which a decree has been passed, shall be deemed to be property of
the deceased which has come to the hands of the son or other descendant as his
legal representative.
Section - 54. Partition of estate or separation of share.
Where the decree is for the
partition of an undivided estate assessed to the payment of revenue to the
Government, or for the separate possession of a share of such an estate, the
partition of the estate or the separation of the share shall be made by the
Collector or any gazetted subordinate of the Collector deputed by him in this
behalf, in accordance with the law (if any) for the time being in force
relating to the partition, or the separate possession of shares, of such
estates.
STATE
AMENDMENT
Karnataka.
For Section 54, the
following Section shall be substituted, namely.-
“54.
Partition of estate or separation of share.-Where the decree is
for the partition of an undivided estate assessed to the payment of revenue to
the Government, or for the separate possession of a share of such an estate,
the partition of the estate or the separation of the share of such an estate
shall be made by the Court in accordance with the law if any, for the time
being in force relating to the partition or the separate possession of shares,
and if necessary on the report of a revenue officer, not below the rank of
Tahsildar or such other person as the Court may appoint as Commissioner in that
behalf.”
[Vide Karnataka Act 36 of
1998, sec. 2.]
ARREST
AND DETENTION
Section - 55. Arrest and detention.
(1)
A judgment-debtor may be arrested in
execution of a decree at any hour and on any day, and shall, as soon as practicable,
be brought before the Court, and his detention may be in the civil prison of
the district in which the Court ordering the detention is situate, or, where
such civil prison does not afford suitable accommodation, in any other place
which the State Government may appoint for the detention of persons ordered by
the Courts of such district to be detained:
Provided, firstly, that, for
the purpose of making an arrest under this section, no dwelling-house shall be
entered after sunset and before sunrise:
Provided, secondly, that no
outer door of a dwelling-house shall be broken open unless such dwelling- house
is in the occupancy of the judgment-debtor and he refuses or in any way
prevents access thereto, but when the officer authorized to make the arrest has
duly gained access to any dwelling-house, he may break open the door of any
room in which he has reason to believe the judgment-debtor is to be found:
Provided, thirdly, that, if
the room is in the actual occupancy of a woman who is not the judgment-debtor
and who according to the customs of the country does not appear in public, the
officer authorized to make the arrest shall give notice to her that she is at
liberty to withdraw, and, after allowing a reasonable time for her to withdraw
and giving her reasonable facility for withdrawing, may enter the room for the
purpose of making the arrest:
Provided, fourthly, that,
where the decree in execution of which a judgment-debtor is arrested, is a
decree for the payment of money and the judgment-debtor pays the amount of the
decree and the costs of the arrest to the officer arresting him, such officer
shall at once release him.
(2)
The State Government may, by notification in
the Official Gazette, declare that any person or class of persons whose arrest
might be attended with danger or inconvenience to the public shall not be
liable to arrest in execution of a decree otherwise than in accordance with
such procedure as may be prescribed by the State Government in this behalf.
(3)
Where a judgment-debtor is arrested in
execution of a decree for the payment of money and brought before the Court,
the Court shall inform him that he may apply to be declared an insolvent, and
that he [may
be discharged] if he has not committed any act of bad faith regarding the
subject of the application and if he complies with the provisions of the law of
insolvency for the time being in force.
(4)
Where a judgment-debtor expresses his
intention to apply to be declared an insolvent and furnishes security, to the
satisfaction of the Court, that he will within one month so apply, and that he
will appear, when called upon, in any proceeding upon the application or upon
the decree in execution of which he was arrested, the Court [may
release] him from arrest, and, if he fails so to apply and to appear, the Court
may either direct the security to be realized or commit him to the civil prison
in execution of the decree.
Section - 56. Prohibition of arrest or detention of women in execution of decree for money.
Notwithstanding anything in
this Part, the Court shall not order the arrest or detention in the civil
prison of a woman in execution of a decree for the payment of money.
Section - 57. Subsistence-allowance.
The State Government may fix
scales, graduated according to rank, race and nationality, of monthly
allowances payable for the subsistence of judgment-debtors.
Section - 58. Detention and release.
(1)
Every person detained in the civil prison in
execution of a decree shall be so detained,-
(a) where the decree is for the payment of a sum
of money exceeding [[five
thousand rupees], for a period not exceeding three months, and,]
[(b)
where the decree is for the payment of a sum of money exceeding two thousand
rupees, but not exceeding five thousand rupees, for a period not exceeding six
weeks.]
[(1A)
For the removal of doubts, it is hereby declared that no order for detention of
the judgment-debtor in civil prison in execution of a decree for the payment of
money shall be made, where the total amount of the decree does not exceed [two
thousand rupees.]]
(2)
A judgment-debtor released from detention
under this section shall not merely by reason of his release be discharged from
his debt, but he shall not be liable to be re-arrested under the decree in
execution of which he was detained in the civil prison.
Section - 59. Release on ground of illness.
(1)
At any time after a warrant for the arrest of
a judgment-debtor has been issued the Court may cancel it on the ground of his
serious illness.
(2)
Where a judgment-debtor has been arrested,
the Court may release him if, in its opinion, he is not in a fit state of
health to be detained in the civil prison.
(3)
Where a judgment-debtor has been committed to
the civil prison, he may be released therefrom-
(a)
by the State Government, on the ground of the
existence of any infectious or contagious disease, or
(b)
by the committing Court, or any Court to
which that Court is subordinate, on the ground of his suffering from any
serious illness.
(4)
A judgment-debtor released under this section
may be re-arrested, but the period of his detention in civil prison shall not
in the aggregate exceed that prescribed by section 58.
ATTACHMENT
Section – [60. Property liable to attachment and sale in execution of decree.
(1)
The following property is liable to
attachment and sale in execution of a decree, namely, lands, houses or other
buildings, goods, money, bank-notes, cheques, bills of exchange, hundis,
promissory notes, Government securities, bonds or other securities for money,
debts, shares in a corporation and, save as hereinafter mentioned, all other
saleable property, movable or immovable, belonging to the judgment-debtor, or
over which, or the profits of which, he has a disposing power which he may
exercise for his own benefit, whether the same be held in the name of the
judgment- debtor or by another person in trust for him or on his behalf:
Provided that the following
particulars shall not be liable to such attachment or sale, namely:-
(a)
the necessary wearing-apparel, cooking vessels,
beds and bedding of the judgment-debtor, his wife and children, and such
personal ornaments as, in accordance with religious usage, cannot be parted
with by any woman;
(b)
tools of artisans, and, where the
judgment-debtor is an agriculturist, his implements of husbandry and such
cattle and seed-grain as may, in the opinion of the Court, be necessary to
enable him to earn his livelihood as such, and such portion of agricultural
produce or of any class of agricultural produce as may have been declared to be
free from liability under the provisions of the next following section;
(c)
houses and other buildings (with the
materials and the sites thereof and the land immediately appurtenant thereto
and necessary for their enjoyment) belonging to [an
agriculturist or a labourer of a domestic servant] and occupied by him;
(d)
books of account;
(e)
a mere right to sue for damages;
(f)
any right of personal service;
(g)
stipends and gratuities allowed to pensioners
of the Government [or
of a local authority or of any other employer], or payable out of any service
family pension fund notified
in the Official Gazette by [the
Central Government or the State Government] in this behalf, and political
pensions;
[(h)
the wages of labourers and domestic servants, whether payable in money or in
kind;
[***]
[(i)
salary to the extent of [the
first [[one
thousand rupees]] and two third of the remainder] [in
execution of any decree other than a decree for maintenance]:
[Provided
that where any part of such portion of the salary as is liable to attachment
has been under attachment, whether continuously or intermittently, for a total
period of twenty-four months, such portion shall be exempt from attachment
until the expiry of a further period of twelve months, and, where such
attachment has been made in execution of one and the same decree, shall, after
the attachment has continued for a total period of twenty-four months, be
finally exempt from attachment in execution of that deeree.]]
[(ia)
one-third of the salary in execution of any decree for maintenance;]
[(j)
the pay and allowances of persons to whom the Air Force Act, 1950 (45 of 1950)
or the Army Act, 1950 (46 of 1950), or the Navy Act, 1957 (62 of 1957), applies;]
(k) all compulsory deposits and other sums in or
derived from any fund to which the Provident Funds Act, [1925],
(19 of 1925), for the time being applies in so far as they are declared by the
said Act not to be liable to attachment;
[(ka)
all deposits and other sums in or derived from any fund to which the Public
Provident Fund Act, 1968 (23 of 1968), for the time being applies, in so far as
they are declared by the said Act as not to be liable to attachment;
(kb)
all moneys payable under a policy of insurance on the life of the
judgment-debtor;
(kc)
the interest of a lessee of a residential of building to which the provisions
of law for the time being in force relating to control of rents and
accommodation apply;]
[(l)
any allowance forming part of the emoluments of any [servant
of the [Government]]
or of any servant of a railway company or local authority which the [appropriate
Government] may by notification in the Official Gazette declare to be exempt
from attachment, and any subsistence grant or allowance made to [any
such servant] while under suspension;]
(m) an expectancy of succession by survivorship or
other merely contingent or possible right or interest;
(n) a right to future maintenance;
(o) any allowance declared by [any
Indian law] to be exempt from liability to attachment or sale in execution of a
decree; and
(p) where the judgment-debtor is a person liable
for the payment of land-revenue; any movable property which, under any law for
the time being applicable to him, is exempt from. sale for the recovery of an
arrear of such revenue.
[Explanation
I. -The moneys payable in relation to the matters mentioned in clauses (g),
(h), (i), (ia), (j), (l) and (o) are exempt from attachment or sale, whether
before or after they are actually payable, and, in the case of salary, the
attachable portion thereof is liable to attachment, whether before or after it
is actually payable.]
[[Explanation
II. -In clauses (i) and (ia)], “salary” means the total monthly emoluments,
excluding any allowance declared exempt from attachment under the provisions of
clause (1), derived by a person from his employment whether on duty or on
leave.]
[Explanation
[III]-In
clause (1) “appropriate Government” means-
(i)
as respects any [person]
in the service of the Central Government, or any servant of [a
Railway Administration] or of a cantonment authority or of the port authority
of a major port, the Central Government; *
* * * *
(ii)
as respects any other [servant
of the [Government]]
or a servant of any other ***
local authority, the State Government.]
[Explanation
IV-For the purposes of this proviso, “wages” includes bonus, and “labourer”
includes a skilled unskilled or semi-skilled labourer.
Explanation V-For the
purposes of this proviso, the expression “agriculturist” means a person who
cultivates land personally and who depends for his livelihood mainly on the
income from agricultural land, whether as owner, tenant, partner or
agricultural labourer.
Explanation VI-For the
purposes of Explanation V an agriculturist shall be deemed to cultivate land
personally, if he cultivates land-
(a)
by his own labour, or
(b)
by the labour of any member of his family, or
(c)
by servants or labourers on wages payable in
cash or in kind (not being as a share of the produce), or both.]
[(IA)
Notwithstanding anything contained in any other law for the time being in
force, an agreement by which a person agrees to waive the benefit of any
exemption under this section shall be void.]
(2)
Nothing in this section shall be deemed ***
to exempt houses and other buildings (with the materials and the sites thereof
and the lands immediately appurtenant thereto and necessary for their
enjoyment) from attachment or sale in execution of decrees for rent of any such
house, building, site or land ***
(3)
[* *
* * *]
STATE
AMENDMENTS
Kerala.
In clause (g) of the Proviso
to sub-section (1) of section 60, after the words “stipends and gratuities
allowed by pensioners of the Government” the words “or of a local authority”
shall be inserted.
[Vide Kerala Act 13 of 1957,
s. 3]
In the proviso to sub
section (1) of section 60 of the Code of Civil Procedure, 1908 (Central Act 5
of 1908), after clause (g), the following clause shall be inserted, namely:-
“(gg)
all moneys payable to the beneficiaries under the Family Benefit Scheme for the
employees of the Government of Kerala.”
[Vide Kerala Act 1 of 1988,
s. 2.]
Himachal Pradesh.
Amendment in section 60. - (1)
In Section 60 sub-section (1):
(i)
at the end of clause (c), add the following:
or compensation paid for
such houses and buildings (including compensation for the materials and the
sites and the land referred to above) acquired for a public purpose;
(ii)
after clause (c), the following clause shall
be inserted, namely: -
(cc)
compensation paid for agricultural
lands belonging to agriculturists and acquired for a public purpose;
[Vide Himachal Pradesh Act 6
of 1956, sec. 2.]
Tamil Nadu.
Amendment of section 60,
Central Act V of 1908.-In clause (g) of the proviso to sub-section
(1) of section 60 of the Code of Civil Procedure, 1908, after the words
“stipends and gratuities allowed to pensioners of the Government”, the words
“or of a authority” shall be inserted.
[Vide Tamil Nadu Act XXXIV
of 1950, s. 2]
Rajasthan.
Amendment of section 60,
Central Act V of 1908.-In clause (b) of the proviso to
sub-section (1) of section 60 of the code of Civil Procedure, 1908 (Central Act
V of 1908) in its application to the State of Rajasthan, after the word,
“agriculturist” the words “his milch cattle and those likely to calve within
two years” shall be inserted.
[Vide Rajasthan Act 19 of
1958, s. 2]
Amendment of section 60,
Central Act V of 1908.- In the proviso to sub-section (1) of
section 60 of the Code of Civil Procedure, 1908 (Central Act V of 1908) in the
application thereof to the State of Rajasthan,-
(i)
after clause (k), the following clause shall
be inserted, namely:-
(kk)
moneys payable under Life Insurance Certificates issued in pursuance of the
Rajasthan Government Servants Insurance Rules, 1953;" and
(ii)
after explanation 3 the following explanation
shall be inserted, namely:-
''Explanation 4.-Where any
money payable to a Government servant of the State is exempt from attachment
under the provision contained in clause (kk), such money shall remain exempt
from attachment notwithstanding the fact that owing to the death of a
Government servant it is payable to some other person."
[Vide Rajasthan Act 16 of
1957, s. 2]
Uttar Pradesh.
Addition of explanation
(1-A) to sub-section (1) of section 60.- After Explanation (1) of sub-section
(1) of section 60 of the Code of Civil Procedure, 1908, insert the following
Explanation (I-A);
“Explanation (I-A) -
Particulars mentioned in clause (c) are exempt from sale in execution of a
decree whether passed before or after the commencement of the Code of Civil
Procedure (United Provinces Amendment) Act, 1908, for enforcement of a mortgage
or charge thereon”.
[Vide Uttar Pradesh Act XXXV
of 1948, s. 2]
Andhra Pradesh.
Amendment of section 60-
In the proviso to
sub-section (1) of section 60 of the Code of Civil Procedure, 1908-
(i)
after clause (k) the following clause shall
be inserted, namely:-
(kk)
amounts payable under policies issued in pursuance of the Rules for [the
Andhra Pradesh Government Life Insurance Department]; and
(ii)
after Explanation 2, the following
Explanation shall be inserted, namely:-
"Explanation 2-A. Where
any sum payable to a Government servant is exempt from attachment under the
provisions of clause (kk), such sum shall remain exempt from attachment
notwithstanding the fact that owing to the death of the Government servant it
is payable to some other person."
[Vide Andhra Pradesh Act 11
OF 1953]
Amendment Of Section 60,
Central Act, 5 Of 1908 :-
In the proviso to
sub-section (1) of Section 60 of the Code of Civil Procedure, 1908, in its
application, to the State of Andhra Pradesh:
(a)
after clause (kk), the following clause shall
be inserted, namely:
“(kkk)
amounts payable under the Andhra Pradesh State Employees, Family Benefit Fund
Rules”
(b)
Explanation 2A, for the expression clause
(kk), the expression “Clause (kk) and (kkk)” shall be substituted.
[Vide Andhra Pradesh Act 24
of 1979]
Amendment Of Section 60,
Central Act 5 Of 1908 :-
In the proviso to
sub-section (1) of Section 60 of the Code of Civil Procedure, 1908--
(1)
after clause (g) the following clause shall
be inserted, namely:
“(gg)
pension granted or continued by the Central Government, [the Government of the Pre-Reorganisation
Hyderabad State] or any other State Government on account of past services or
present infirmities or as a compassionate allowance,” and
(2)
in Explanation 2-A for the word, brackets and
letters” Clause (kk)” the words, brackets and letters” Clause (gg) or Clause
(kk)” shall be substituted.
[Vide Andhra Pradesh Act 18
of 1953]
Amendment Of Section 60,
Central Act 5 Of 1908 :-
In clause (g) of the proviso
to sub-section (1) of Section 60 of the Code of Civil Procedure, 1908, after
the words “stipends and gratuities allowed to pensioners of the Government” the
words” or of a local authority” shall be inserted.
[Vide Andhra Pradesh Act 34
of 1950]
Punjab
In the Code of Civil
Procedure, 1908, in its application to the State of Punjab, in section 60, in
sub-section (1), in the proviso, in clause (b), after the words and sign “judgment-debtor
is an agriculturalist”, the words and sign “his agricultural land to the extent
of two and half acres, “shall be inserted.
[Vide Punjab Act XIV of 2020]
Section - 61. Partial exemption of agricultural produce.
The State Government ***
may, by general or special order published in the Official Gazette, declare
that such portion of agricultural produce, or of any class of agricultural
produce, as may appear to the State Government to be necessary for the purpose
of providing until the next harvest for the due cultivation of the land and for
the support of the judgment-debtor and his family, shall, in the case of all
agriculturists or of any class of agriculturists, be exempted from liability to
attachment or sale in execution of a decree.
Section - 62. Seizure of property in dwelling-house.
(1)
No person executing any process under this
Code directing or authorizing seizure of movable property shall enter any
dwelling-house after sunset and before sunrise.
(2)
No outer door of a dwelling-house shall be
broken open unless such dwelling-house is in the occupancy of the judgment-debtor
and he refuses or in any way prevents access thereto, but when the person
executing any such process has duly gained access to any dwelling-house, he may
break open the door of any room in which he has reason to believe any such
property to be.
(3)
Where a room in a dwelling-house is in the
actual occupancy of a woman who, according to the customs of the country, does
not appear in public, the person executing the process shall give notice to
such woman that she is at liberty to withdraw; and, after allowing reasonable
time for her to withdraw and giving her reasonable facility for withdrawing, he
may enter such room for the purpose of seizing the property, using at the same
time every precaution, consistent with these provisions, to prevent its
clandestine removal.
Section - 63. Property attached in execution of decrees of several Courts.
(1)
Where property not in the custody of any
Court is under attachment in execution of decrees of more Courts than one, the
Court which shall receive or realize such property and shall determine any
claim thereto and any objection to the attachment thereof shall be the Court of
highest grade, or, where there is no difference in grade between such Courts,
the Court under whose decree the property was first attached.
(2)
Nothing in this section shall be deemed to
invalidate any proceeding taken by a Court executing one of such decrees.
[Explanation.
For the purposes of sub-section (2), “proceeding taken by a Court” does not
include an order allowing, to a decree-holder who has purchased property at a
sale held in execution of a decree, set off to the extent of the purchase price
payable by him.]
Section - 64. Private alienation of property after attachment to be void.
[(1)]
Where an attachment has been made, any private transfer or delivery of the
property attached or of any interest therein and any payment to the judgment-
debtor of any debt, dividend or other monies contrary to such attachment, shall
be void as against all claims enforceable under the attachment.
[(2)
Nothing in this section shall apply to any private transfer or delivery of the
property attached or of any interest therein, made in pursuance of any contract
for such transfer or delivery entered into and registered before the
attachment.]
Explanation. For the purpose
of this section, claims enforceable under an attachment include claims for the
rateable distribution of assets.
State Amendment
Sikkim
Amendment
of section 64 :-
Section 64 of the principal
Act shall be renumbered as sub-section (1) of that section and after
sub-section (1) as so renumbered, the following sub-section shall be inserted,
namely:-
“(2)
Nothing in this section shall apply to
any private transfer or delivery of the property attached or of any interest
therein, made in pursuance of any contract for such transfer or delivery
entered into and registered before the attachment.”
5 to
1908
No
further appeal in certain cases.
“100
A. Notwithstanding anything contained in any Letters Paten for any High Court
or in any instrument having the force of law or in any other law for the time
being in force, where any appeal from an original or appellate decree or order
is heard and decided by a Single Judge of a High Court, no further appeal shall
lie from the judgment and decree of such Single Judge.”
[Vide Sikkim Act 22 of 2002]
SALE
Section - 65. Purchaser’s title.
Where immovable property is
sold in execution of a decree and such sale has become absolute, the property
shall be deemed to have vested in the purchaser from the time when the property
is sold and not from the time when the sale becomes absolute.
Section - 66. [138][Suit purchase being on behalf of plaintiff.]
[* * *]
Section - 67. Power for State Government to make rules as to sales of land in execution of decrees for payment of money.
[(1)]
The State Government ***
may, by notification in the Official Gazette, make rules for any local area
imposing conditions in respect of the sale of any class of interests in land in
execution of decrees for the payment of money, where such interest are so
uncertain or undetermined as, in the opinion of the State Government, to make
it impossible to fix their value.
[(2)
When on the date on which this Code came into operation in any local area, any
special rules as to sale of and in execution of decrees were in force therein,
the State Government may, by notification in the Official Gazette declare such
rules to be in force, or may ***
by a like notification, modify the same.
Every notification issued in
the exercise of the powers conferred by this sub-section shall set out the
rules so continued or modified.]
[(3)
Every rule made under this section shall be laid, as soon as may be after it is
made, before the State Legislature.]
DELEGATION
TO COLLECTOR OF POWER TO EXECUTE DECREES AGAINST IMMOVABLE PROPERTY
Section - 68. [144][Power to prescribe rules for transferring to collector execution of certain decrees.]
[* * *]
Section - 69. [145][Provisions of Third Schedule to apply.]
[* * *]
Section - 70. [146][Rules of Procedure.]
[* * *]
Section - 71. [147][Jurisdiction of Civil Courts barred.]
[* * *]
Section - 72. [148][Collector to deemed to be acting judicially.]
[* * *]
DISTRIBUTION
OF ASSETS
Section - 73. Proceeds of execution-sale to be rateably distributed among decree-holders.
(1)
Where assets are held by a Court and more
persons than one have, before the receipt of such assets, made application to
the Court for the execution of decrees for the payment of money passed against
the same judgment-debtor and have not obtained satisfaction thereof, the
assets, after deducting the costs of realization, shall be rateably distributed
among all such persons:
Provided as follows:-
(a)
where any property is sold subject to a
mortgage or charge, the mortgage or incumbrancer shall not be entitled to share
in any surplus arising from such sale;
(b)
where any property liable to be sold in
execution of a decree is subject to a mortgage or charge, the Court may, with
the consent of the mortgagee or incumbrancer, order that the property be sold
free from the mortgage or charge, giving to the mortgagee or incumbrancer the
same interest in the proceeds of the sale as he had in the property sold;
(c)
where any immovable property is sold in
execution of a decree ordering its sale for the discharge of an incumbrance thereon,
the proceeds of sale shall be applied-
First, in defraying the
expenses of the sale;
Secondly, in discharging the
amount due under the decree;
Thirdly, in discharging the
interest and principal monies due on subsequent incumbrances (if any); and
Fourthly, rateably among the
holders of decrees for the payment of money against the judgment-debtor, who
have, prior to the sale of the property, applied to the Court which passed the
decree ordering such sale for execution of such decrees, and have no obtained
satisfaction thereof.
(2)
Where all or any of the assets liable to be
rateably distributed under this section are paid to a person not entitled to
receive the same, any person so entitled may sue such person to compel him to
refund the assets.
(3)
Nothing in this section affects any right of
the Government.
RESISTANCE
TO EXECUTION
Section - 74. Resistance to execution.
Where the Court is satisfied
that the holder of a decree for the possession of immovable property or that
the purchaser of immovable property sold in execution of a decree has been
resisted or obstructed in obtaining possession of the property by the
judgment-debtor or some person on his behalf and that such resistance or
obstruction was without any just cause, the Court may, at the instance of the
decree-holder or purchaser, order the judgment-debtor or such other person to
be detained in the civil prison for a term which may extend to thirty days and
may further direct that the decree-holder or purchaser be put into possession
of the property.
PART
III
INCIDENTAL
PROCEEDINGS
COMMISSIONS
Section - 75. Power of Court to issue commissions.
Subject to such conditions
and limitations as may be prescribed, the Court may issue a commission-
(a)
to examine any person;
(b)
to make a local investigation;
(c)
to examine or adjust accounts; or
(d)
to make a partition;
[(e)
to hold a scientific, technical, or expert investigation;
(f) to conduct sale of property which is subject
to speedy and natural decay and which is in the custody of the Court pending
the determination of the suit;
(g) to perform any ministerial act.]
Section - 76. Commission to another Court.
(1)
A commission for the examination of any
person may be issued to any Court (not being a High Court) situate in a State
other than the State in which the Court of issue is situate and having
jurisdiction in the place in which the person to be examined resides.
(2)
Every Court receiving a commission for the
examination of any person under sub-section (1) shall examine him or cause him
to be examined pursuant thereto, and the commission, when it has been duly
executed, shall be returned together with the evidence taken under it to the
Court from which it was issued, unless the order for issuing the commission has
otherwise directed, in which case the commission shall be returned in terms of
such order.
Section - 77. Letter of request.
In lieu of issuing a
commission the Court may issue a letter of request to examine a witness
residing at any place not within [India.]
Section - [78. Commissions issued by foreign Courts.
Subject to such conditions
and limitations as may be prescribed the provisions as to the execution and
return of commissions for the examination of witnesses shall apply to
commissions issued by or at the instance of-
(a)
Courts situate in any part of India to which
the provisions of this Code do not extend; or
(b)
Courts established or continued by the
authority of the Central Government outside India; or
(c)
Courts of any State or country outside
India.]
PART
IV
SUITS
IN PARTICULAR CASES
SUITS
BY OR AGAINST THE GOVERNMENT OR PUBLIC OFFICERS IN THEIR OFFICIAL CAPACITY
Section - [79. Suits by or against Government.
In a suit by or against the
Government, the authority to be named as plaintiff or defendant, as the case
may be, shall be-
(a)
in the case of a suit by or against the
Central Government, [the
Union of India], and
(b)
in the case of a suit by or against a State
Government, the State.]
Section - 80. Notice.
[(1)]
[Save
as otherwise provided in sub-section (2), no suits [shall
be instituted] against the Government (including the Government of the State of
Jammu and Kashmir)] or against a public officer in respect of any act
purporting to be done by such public officer in his official capacity, until
the expiration of two months next after notice in writing has been [delivered
to, or left at the office of-]
(a) in the case of a suit against the Central
Government, [except
where it relates to a railway] a Secretary to that Government;
[(b)]
in the case of a suit against the Central Government where it relates to
railway, the General Manager of that railway;
[(bb)
in the case of a suit against the Government of the State of Jammu and Kashmir,
the Chief Secretary to that Government or any other officer authorized by that Government
in this behalf;]
(c) in the case of a suit against [any
other State Government], a Secretary to that Government or the Collector of the
district; ***
* *
* * *
and, in the case of a public
officer, delivered to him or left at his office, stating the cause of action,
the name, description and 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)
A suit to obtain an urgent or immediate relief against the Government
(including the Government of the State of Jammu and Kashmir) or any public
officer in respect of any act purporting to be done by such public officer in
his official capacity, may be instituted, with the leave of the Court, without
serving any notice as required by sub-section (1); but the Court shall not
grant relief in the suit, whether interim or otherwise, except after giving to
the Government or public officer, as the case may be, a reasonable opportunity
of showing cause in respect of the relief prayed for in the suit:
Provided that the Court
shall, if it is satisfied, after hearing the parties, that no urgent or
immediate relief need be granted in the suit, return the plaint for
presentation to it after complying with the requirements of sub-section (1).
(3) No suit 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 shall be dismissed merely by reason of
any error or defect in the notice referred to in sub-section (1), if in such
notice-
(a)
the name, description and the residence of
the plaintiff had been so given as to enable the appropriate authority or the
public officer to identify the person serving the notice and such notice had
been delivered or left at the office of the appropriate authority specified in
sub-section (1), and
(b)
the cause of action and the relief claimed by
the plaintiff had been substantially indicated.]
State Amendments
Madhya
Pradesh-
Amendment
Of Section 80 :-
In Section 80 of the
Principal Act,-
(i)
in sub-section (1) for the words, brackets
and figures “sub-section (2)”, the words, brackets and figures “sub-section (2)
or sub-section (4)” shall be substituted;
(ii)
after sub-section (3), the following
sub-section shall be inserted, namely:-
“(4)
Where in a suit or proceeding referred to
in Rule 3-B of Order I, the State is joined as a defendant or non-applicant or
where the Court orders joinder of the State as defendant or non-applicant in exercise
of powers under sub-rule (2) of Rule 10 of Order I such suit or proceeding
shall not be dismissed by reason of omission of the plaintiff or application to
issue notice under sub-section (1)”.
[Vide Madhya Pradesh Act 29
of 1984]
Section - 81. Exemption from arrest and personal appearance.
In a suit instituted against
a public officer in respect of any act purporting to be done by him in his
official capacity:
(a)
the defendant shall not be liable to arrest
nor his property to attachment otherwise than in execution of a decree, and,
(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.
Section - 82. Execution of decree.
[(1)
Where, in a suit by or against the Government or by or against a public officer
in respect of any act purporting to be done by him in his official capacity, a
decree is passed against the Union of India or a State or, as the case may be,
the public officer, such decree shall not be executed except in accordance with
the provisions of sub-section (2).]
(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
decree].
[(3)
The provisions of sub-sections (1) and (2) shall apply in relation to an order
or award as they apply in relation to a decree, if the order or award-
(a)
is passed or made against [the
Union of India] or a State or a public officer in respect of any such act as
aforesaid, whether by a Court or by any other authority; and
(b)
is capable of being executed under the
provisions of this Code or of any other law for the time being in force as if
it were a decree.]
[SUITS
BY ALIENS AND BY OR AGAINST FOREIGN RULERS, AMBASSADORS AND ENVOYS]
Section - 83. When aliens may sue.
Alien enemies residing in India with the permission of the Central Government,
and alien friends, may sue in any Court otherwise competent to try the suit, as
if they were citizens of India, but alien enemies residing in India without
such permission, or residing in a foreign country, shall not sue in any such
Court.
Explanation. -Every person
residing in a foreign country, the Government of which is at war with India and
carrying on business in that country without a licence in that behalf granted
by the Central Government, shall, for the purpose of this section, be deemed to
be an alien enemy residing in a foreign country.
Section - 84. When foreign States may sue.
A foreign State may sue in
any competent Court:
Provided that the object of
the suit is to enforce a private right vested in the Ruler of such State or in
any officer of such State in his public capacity.
Section - 85. Persons specially appointed by Government to prosecute or defend on behalf of foreign Rulers.
(1)
The Central Government may, at the request of
the Ruler of a foreign State or at the request of any person competent in the
opinion of the Central Government to act on behalf of such Ruler, by order,
appoint any persons to prosecute or defend any suit on behalf of such Ruler,
and any persons so appointed shall be deemed to be the recognized agents by
whom appearances, acts and applications under this Code may be made or done on
behalf of such Ruler.
(2)
An appointment under this section may be made
for the purpose of a specified suit or of several specified suits, or for the
purpose of all such suits as it may from time to time be necessary to prosecute
or defend on behalf of such Ruler.
(3)
A person appointed under this section may authorise
or appoint any other persons to make appearances and applications and do acts
in any such suit or suits as if he were himself a party thereto.
Section - 86. Suits against foreign Rulers, Ambassadors and Envoys.
(1)
No. ***
foreign State may be sued in any Court otherwise competent to try the suit
except with the consent of the Central Government certified in writing by a
Secretary to that Government:
Provided that a person may,
as a tenant of immovable property, sue without such consent as aforesaid [a
foreign State] from whom he holds or claims to hold the property.
(2)
Such consent may be given with respect to a
specified suit or to several specified suits or with respect to all suits of
any specified class or classes, and may specify, in the case of any suit or
class of suits, the Court in which [the
foreign State] may be sued, but it shall not be given, unless it appears to the
Central Government that [the
foreign State]-
(a)
has instituted a suit in the Court against
the person desiring to sue [it],
or
(b)
by [itself]
or another, trades within the local limits of the jurisdiction of the Court, or
(c)
is in possession of immovable property
situate within those limits and is to be sued with reference to such property
or for money charged thereon, or
(d)
has expressly or impliedly waived the
privilege accorded to 5[it] by this section.
[(3)
Except with the consent of the Central Government, certified in writing by a
Secretary to that Government, no decree shall be executed against the property
of any foreign State.]
(4)
The preceding provisions of this section shall apply in relation to-
[(a)
any ruler of a foreign State;]
[(aa)]
any Ambassador or Envoy of a foreign State;
(b)
any High Commissioner of a Commonwealth country; and
(c) any such member of the staff [of
the foreign State or the staff or retinue of the Ambassador] or Envoy of a
foreign State or of the High Commissioner of a Commonwealth country as the
Central Government may, by general or special order, specify in this behalf.
[as
they apply in relation to a foreign State].
[(5)
The following persons shall not be arrested under this Code, namely:
(a)
any Ruler of a foreign State;
(b)
any Ambassador or Envoy of a foreign State;
(c)
any High Commissioner of a Commonwealth
country;
(d)
any such member of the staff of the foreign
State or the staff or retinue of the Ruler, Ambassador or Envoy of a foreign
State or of the High Commissioner of a Commonwealth country, as the Central
Government may, by general or special order, specify in this behalf.
(6) Where a request is made to the Central
Government for the grant of any consent referred to in subsection (1), the
Central Government shall, before refusing to accede to the request in whole or
in part, give to the person making the request a reasonable opportunity of
being heard.]
Section - 87. Style of foreign Rulers as parties to suits.
The Ruler of a foreign State
may sue, and shall be sued, in the name of his State:
Provided that in giving the
consent referred to in section 86, the Central Government may direct that the
Ruler may be sued in the name of an agent or in any other name.
Section - 87A. Definitions of “Foreign State” and “Rulers”.
(1)
In this Part,-
(a)
“foreign State” means any State outside India
which has been recognised by the Central Government; and
(b)
“Ruler”, in relation to a foreign State,
means the person who is for the time being recognized by the Central Government
to be the head of that State.
(2)
Every Court shall take judicial notice of the
fact-
(a)
that a State has or has not been recognized
by the Central Government;
(b)
that a person has or has not been recognized
by the Central Government to be the head of a State.
SUITS
AGAINST RULERS OF FORMER INDIAN STATES
Section - 87B. Applications of sections 85 and 86 to Rulers of former Indian States.
[(1)
In the case of any suit by or against the Ruler of any former Indian State
which is based wholly or in part upon a cause of action which arose before the
commencement of the Constitution or any proceeding arising out of such suit,
the provisions of section 85 and sub-sections (1) and (3) of section 86 shall
apply in relation to such Ruler as they apply in relation to the Ruler of a
foreign State.]
(2)
In this section-
(a)
“former Indian State” means any such Indian
State as the Central Government may, by notification in the Official Gazette,
specify for the purposes of this; ***
[(b)
“Commencement of the Constitution” means the 26th day of January, 1950; and
(c)
“Ruler”, in relation to a former Indian State, has the same meaning as in
article 363 of the Constitution.]
INTERPLEADER
Section - 88. Where interpleader suit may be instituted.
Where two or more persons
claim adversely to one another the same debts, sum of money or other property,
movable or immovable, from another person, who claims no interest therein other
than for charges or costs and who is ready to pay or deliver it to the rightful
claimant, such other person may institute a suit of interpleader against all
the claimants for the purpose of obtaining a decision as to the person to whom
the payment or delivery shall be made and of obtaining indemnity for himself:
Provided that where any suit
is pending in which the rights of all parties can properly be decided, no such
suit of interpleader shall be instituted.
PART
V
SPECIAL
PROCEEDINGS ARBITRATION
Section - [89. Settlement of disputes outside the Court.
(1)
Where it appears to the Court that there
exist elements of a settlement which may be acceptable to the parties, the
Court shall formulate the terms of settlement and give them to the parties for
their observations and after receiving the observations of the parties, the
Court may reformulate the terms of a possible settlement and refer the same
for:-
(a)
arbitration;
(b)
conciliation;
(c)
judicial settlement including settlement
through Lok Adalat; or
(d)
mediation.
(2)
Were a dispute has been referred-
(a)
for arbitration or conciliation, the
provisions of the Arbitration and Conciliation Act, 1996 (26 of 1996) shall
apply as if the proceedings for arbitration or conciliation were referred for
settlement under the provisions of that Act;
(b)
to Lok Adalat, the Court shall refer the same
to the Lok Adalat in accordance with the provisions of sub-section (1) of
section 20 of the Legal Services Authority Act, 1987 (39 of 1987) and all other
provisions of that Act shall apply in respect of the dispute so referred to the
Lok Adalat;
(c)
for judicial settlement, the Court shall
refer the same to a suitable institution or person and such institution or
person shall be deemed to be a Lok Adalat and all the provisions of the Legal
Services Authority Act, 1987 (39 of 1987) shall apply as if the dispute were
referred to a Lok Adalat under the provisions of that Act;
(d)
for mediation, the Court shall effect a
compromise between the parties and shall follow such procedure as may be
prescribed.]
SPECIAL
CASE
Section - 90. Power to state case for opinion of Court.
Where any person agree in
writing to state a case for the opinion of the Court, then the Court shall try
and determine the same in the manner prescribed.
[PUBLIC
NUISANCES AND OTHER WRONGFUL ACTS AFFECTING THE PUBLIC]
Section - 91. Public nuisances and other wrongful acts affecting the public.
[(1)
In the case of a public nuisance or other wrongful act affecting, or likely to
affect, the public, a suit for a declaration and injunction or for such other
relief as may be appropriate in the circumstances of the case, may be instituted,-
(a)
by the Advocate-General, or
(b)
with the leave of the Court, by two or more
persons, even though no special damage has been caused to such persons by
reason of such public nuisance or other wrongful act.]
(2) Nothing in this section shall be deemed to
limit or otherwise affect any right of suit which may exist independently of
its provisions.
State Amendment
Punjab
Amendment
in section 91 of Act V of 1908.- (1) In the Act, in section
91, in subsection (1), for the expression “having obtained the consent in
writing of the Advocate General”, the expression “with the leave of the Court”
shall be substituted.
Section – [188][92. Public charities.
(1)
In the case of any alleged breach of any
express or constructive trust created for public purposes of a charitable or
religious nature, or where the direction of the Court is deemed necessary for
the administration of any such trust, the Advocate-General, or two or more
persons having an interest in the trust and having obtained the [leave
of the Court,] may institute a suit, whether contentious or not, in the
principal Civil Court of original jurisdiction or in any other Court empowered
in that behalf by the State Government within the local limits of whose
jurisdiction the whole or any part of the subject-matter of the trust is
situate to obtain a decree:-
(i)
removing any trustee;
(ii)
appointing a new trustee;
(iii)
vesting any property in a trustee;
[(cc)
directing a trustee who has been removed or a person who has ceased to be a
trustee, to deliver possession of any trust property in his possession to the
person entitled to the possession of such property];
(iv)
directing accounts and inquiries;
(v)
declaring what proportion of the trust
property or of the interest therein shall be allocated to any particular object
of the trust;
(vi)
authorizing the whole or any part of the
trust property to be let, sold, mortgaged or exchanged;
(vii)
settling a scheme; or
(viii)
granting such further or other relief as the
nature of the case may require.
(2)
Save as provided by the Religious Endowments
Act, 1863 (XX of 1863), [or
by any corresponding law in force in [the
territories which, immediately before the 1st November, 1956, were comprised in
Part B States]], no suit claiming any of the reliefs specified in sub-section
(1) shall be instituted in respect of any such trust as is therein referred to
except in conformity with the provisions of that sub-section.
[(3)
The Court may alter the original purposes of an express or constructive trust
created for public purposes of a charitable or religious nature and allow the
property or income of such trust or any portion thereof to be applied cy pres
in one or more of the following circumstances, namely:-
(a)
where the original purposes of the trust, in
whole or in part:-
(i)
have been, as far as may be, fulfilled; or
(ii)
cannot be carried out at all, or cannot be
carried out according to the directions given in the instrument creating the
trust or, where there is no such instrument, according to the spirit of the
trust; or
(b)
where the original purposes of the trust
provide a use for a part only of the property available by virtue of the trust;
or
(c)
where the property available by virtue of the
trust and other property applicable for similar purposes can be more
effectively used in conjunction with, and to that end can suitably be made
applicable to any other purpose, regard being had to the spirit of the trust
and its applicability to common purposes; or
(d)
where the original purposes, in whole or in
part, were laid down by reference to an area which then was, but has since
ceased to be, a unit for such purposes; or
(e)
where the original purposes, in whole or in
part, have, since they were laid down:
(i)
been adequately provided for by other means,
or
(ii)
ceased, as being useless or harmful to the
community, or
(iii)
ceased to be, in law, charitable, or
(iv)
ceased in any other way to provide a suitable
and effective method of using the property available by virtue of the trust,
regard being had to the spirit of the trust.]
State Amendment
Punjab
Amendment
in section 92 of Act V of 1908.- (1) In the Act, in section
92:
(a)
in subsection (1), for the expression “and
having obtained the consent in writing of the Advocate General”, the expression
“with the leave of the Court” shall be substituted; and
(b)
for subsection (2), the following shall be
substituted:
“(2)
No suit claiming any of the reliefs
specified in subsection (1) shall be instituted in respect of any such trust as
is therein referred to, except in conformity with the provisions of that
subsection.”.
Section - 93. Exercise of powers of Advocate-General outside presidency-towns.
The powers conferred by
sections 91 and 92 on the Advocate-General may, outside the presidency-towns,
be, with the previous sanction of the State Government, exercised also by the
Collector or by such officer as the State Government may appoint in this
behalf.
PART
VI
SUPPLEMENTAL
PROCEEDINGS
Section - 94. Supplemental proceedings.
In order to prevent the ends
of justice from being defeated the Court may, if it is so prescribed,-
(a)
issue a warrant to arrest the defendant and
bring him before the Court to show cause why he should not give security for
his appearance, and if he fails to comply with any order for security commit
him to the civil prison;
(b)
direct the defendant to furnish security to
produce any property belonging to him and to place the same at the disposal of
the Court or order the attachment of any property;
(c)
grant a temporary injunction and in case of
disobedience commit the person guilty thereof to the civil prison and order
that his property be attached and sold;
(d)
appoint a receiver of any property and
enforce the performance of his duties by attaching and selling his property;
(e)
make such other interlocutory orders as may
appear to the Court to be just and convenient.
Section - 95. Compensation for obtaining arrest, attachment or injunction on insufficient grounds.
(1)
Where, in any suit in which an arrest or
attachment has been effected or a temporary injunction granted under the last
preceding section,
(a)
it appears to the Court that such arrest,
attachment or injunction was applied for on insufficient grounds, or
(b)
the suit of the plaintiff fails and it
appears to the Court that there was no reasonable or probable grounds for
instituting the same, the defendant may apply to the Court, and the Court may,
upon such application, award against the plaintiff by its order such amount [not
exceeding fifty thousand rupees], as it deems a reasonable compensation to the
defendant for the [expense
or injury (including injury to reputation) caused to him]:
Provided that a Court shall
not award, under this section an amount exceeding the limits of its pecuniar
jurisdiction.
(2)
An order determining any such application
shall bar any suit for compensation in respect of such arrest, attachment or
injunction.
State Amendment
Punjab
Substitution
of section 95 of Act V of 1908.- In the Act, for section 95,
the following shall be substituted:
“95. Compensation for obtaining arrest,
attachment or injunction on insufficient grounds.- (1)
Where, in any suit in which an arrest or attachment has been effected or a
temporary injunction is granted under the last preceding section, it appears to
the Court that:
(a)
such arrest, attachment or injunction was
applied for insufficient grounds; or
(b)
there was no reasonable or probable ground
for making the application - the Court may, on its own motion or on the
application of the aggrieved party, award such punitive compensation as it
deems reasonable to the aggrieved party for the expense and injury caused to
him.
(2) In addition to the
compensation awardable under subsection (1), the Court may also make an order
directing the party at fault to deposit such amount in the public exchequer as
the Court deems just, as penalty for abusing the process of the law and wasting
the time of the Court.
(3) An order under this
section shall bar any suit for compensation in respect of such arrest,
attachment or injunction.”.
[Vide Punjab Act XIV of
2018]
PART
VII
APPEALS
APPEALS
FROM ORIGINAL DECREES
Section - 96. Appeal from original decree.
(1)
Save where otherwise expressly provided in
the body of this Code or by any other law for the time being in force, an
appeal shall lie from every decree passed by any Court exercising original
jurisdiction the Court authorized to hear appeals from the decisions of such
Court.
(2)
An appeal may lie from an original decree
passed ex parte.
(3)
No appeal shall lie from a decree passed by
the Court with the consent of parties.
[(4)
No appeal shall lie, except on a question of law, from a decree in any suit of
the nature cognisable by Courts of Small Causes, when the amount or value of
the subject-matter of the original suit does not exceed [ten
thousand rupees.]]
Section - 97. Appeal from final decree where no appeal from preliminary decree.
Where any party aggrieved by
a preliminary decree passed after the commencement of this Code does not appeal
from such decree, he shall be precluded from disputing its correctness in any
appeal which may be preferred from the final decree.
State Amendment
Punjab
Amendment
in section 97 of Act V of 1908.- In the Act, in section 97,
the words “passed after the commencement of this Code” shall be omitted.
[Vide Punjab Act XIV of
2018]
Section - 98. Decision where appeal heard by two or more Judges.
(1)
Where an appeal is heard by a Bench of two or
more Judges, the appeal shall be decided in accordance with the opinion of such
Judges or of the majority (if any) of such Judges.
(2)
Where there is no such majority which concurs
in a judgment varying or reversing the decree appealed from, such decree shall
be confirmed:
Provided that where the
Bench hearing the appeal is [composed
of two or other even number of Judges belonging to a Court consisting of more
Judges than those constituting the Bench] and the Judges composing the Bench
differ in opinion on a point of law, they may state the point of law upon which
they differ and the appeal shall then be heard upon that point only by one or
more of the other Judges, and such point shall be decided according to the
opinion of the majority (if any) of the Judges who have heard the appeal,
including those who first heard it.
[(3)
Nothing in
this section shall be deemed to alter or otherwise affect any provision of the
letters to patent of any High Court.]
Section - 99. No decree to be reversed or modified for error or irregularity not affecting merits or jurisdiction.
No decree shall be reversed
or substantially varied, nor shall any case be remanded, in appeal on account
of any misjoinder [or
non-joinder] of parties or causes of action or any error, defect or
irregularity in any proceedings in the suit, not affecting the merits of the
case or the jurisdiction of the Court:
[Provided
that nothing in this section shall apply to non-joinder of a necessary party.]
Section - [99A. No order under section 47 to be reversed or modified unless decision of the case is prejudicially affected.
Without prejudice to the
generality of the provisions of section 99, no order under section 47 shall be
reversed or substantially varied, on account of any error, defect or
irregularity in any proceeding relating to such order, unless such error,
defect or irregularity has prejudicially affected the decision of the case.]
APPEALS
FROM APPELLATE DECREES
Section - [100. Second appeal.
(1)
Save as otherwise expressly provided in the
body of this Code or by any other law for the time being in force, an appeal
shall lie to the High Court from every decree passed in appeal by any Court
subordinate to the High Court, if the High Court is satisfied that the case
involves a substantial question of law.
(2)
An appeal may lie under this section from an
appellate decree passed ex parte.
(3)
In an appeal under this section, the
memorandum of appeal shall precisely state the substantial question of law
involved in the appeal.
(4)
Where the High Court is satisfied that a
substantial question of law is involved in any case, it shall formulate that
question.
(5)
The appeal shall be heard on the question so
formulated and the respondent shall, at the hearing of the appeal, be allowed
to argue that the case does not involve such question:
Provided that nothing in
this sub-section shall be deemed to take away or abridge the power of the Court
to hear, for reasons to be recorded, the appeal on any other substantial
question of law, not formulated by it, if it is satisfied that the case
involves such question.]
STATE
AMENDMENT
Kerala.
In sub-section (1) of
section 100 of the Principal Act, after clause (c), the following clause shall
be added, namely:
(d) the finding of the lower appellate court on any
question of fact material to the right decision of the case on the merits being
in conflict with the finding of the Court of first instance on such question.
[Vide Kerala Act 13 of 1957
sec. 4.]
Section - [100A. No further appeal in certain cases.
Notwithstanding anything
contained in any Letters Patent for any High Court or in any instrument having
the force of law or in any other law for the time being in force, where any
appeal from an original or appellate decree or order is heard and decided by a
Single Judge of a High Court, no further appeal shall lie from the judgment and
decree of such Single Judge.]
Section - 101. Second appeal on no other grounds.
No second appeal shall lie
except on the ground mentioned in section 100.
Section - [102. No second appeal in certain cases.
No second appeal shall lie
from any decree, when the subject matter of the original suit is for recovery
of money not exceeding twenty-five thousand rupees.]
State Amendment
Punjab
Substitution
of section 102 of Act V of 1908.- In the Act, for section 102,
the following shall be substituted:
“102. No second appeal in certain
cases.- No second appeal shall lie in any suit when the amount or
value of the subject matter of the original suit does not exceed rupees twenty
five million.”.
[Vide Punjab Act XIV of
2018]
Sikkim
Substitution
of new section for section 102 :-
for section 102 of the
principal Act [as substituted by section 11 of the Code of Civil Procedure
(Amendment) Act, 1999], the following section shall be substituted, namely:-
46
of 1999
No
second appeal in certain cases.
“102.
No second appeal shall lie from any decree, when the subject matter of the
original suit is for recovery of money not exceeding twenty-five thousand
rupees.”
[Vide Sikkim Act 22 of 2002]
Section - [103. Power of High Court to determine issue of fact.
In any second appeal, the
High Court may, if the evidence on the record is sufficient, determine any
issue necessary for the disposal of the appeal,-
(a)
which has not been determined by the lower
Appellate Court or both by the Court of first instance and the lower Appellate
Court, or
(b)
which has been wrongly determined by such
Court or Courts by reason of a decision on such question of law as is referred
to in section 100.]
APPEALS
FROM ORDERS
Section - 104. Orders from which appeal lies.
(1)
An appeal shall lie from the following
orders, and save as otherwise expressly provided in the body of this Code or by
any law for the time being in force, from no other orders:-
* *
* * *
[(ff)
an order under section 35A;]
[(ffa)
an order under section 91 or section 92 refusing leave to institute a suit of
the nature referred to in section 91 or section 92, as the case may be;]
(g) an order under section 95;
(h) an order
under any of the provisions of this Code imposing a fine or directing the
arrest or detention in the civil prison of any person except where such arrest
or detention is in execution of a decree;
(i) any order made under rules from which an
appeal is expressly allowed by rules:
[Provided
that no appeal shall lie against any order specified in clause (ff) save on the
ground that no order, or an order for the payment of a less amount, ought to
have been made.]
(2)
No appeal shall lie from any order passed in
appeal under this section.
State Amendment
Punjab
Amendment
in section 104 of Act V of 1908.- In the Act, in section 104,
after clause (ff), the following new clause (fff) shall be inserted:
“(fff)
an order under section 91 or section 92 refusing leave to institute a suit;”.
[Vide Punjab Act XIV of
2018]
Section - 105. Other orders.
(1)
Save as otherwise expressly provided, no
appeal shall lie from any order made by a Court in the exercise of its original
or appellate jurisdiction; but where a decree is appealed from, any error,
defect or irregularity in any order, affecting the decision of the case, may be
set forth as a ground of objection in the memorandum of appeal.
(2)
Notwithstanding anything contained in
sub-section (1), where any party aggrieved by an order of remand ***
from which an appeals lies does not appeal therefrom, he shall thereafter be
precluded from disputing its correctness.
Section - 106. What Courts to hear appeals.
Where an appeal from any
order is allowed it shall lie to the Court to which an appeal would lie from
the decree in the suit in which such order was made, or where such order is
made by a Court (not being a High Court) in the exercise of appellate
jurisdiction, then to the High Court.
GENERAL
PROVISIONS RELATING TO APPEALS
Section - 107. Powers of Appellate Court.
(1)
Subject to such conditions and limitations as
may be prescribed, an Appellate Court shall have power:
(a)
to determine a case finally;
(b)
to remand a case;
(c)
to frame issues and refer them for trial;
(d)
to take additional evidence or to require
such evidence to be taken.
(2)
Subject as aforesaid, the Appellate Court
shall have the same powers and shall perform as nearly as may be the same
duties as are conferred and imposed by this Code on Courts of original
jurisdiction in respect of suits instituted therein.
Section - 108. Procedure in appeals from appellate decrees and orders.
The provisions of this Part
relating to appeals from original decrees shall, so far as may be, apply to
appeals-
(a)
from appellate decrees, and
(b)
from orders made under this Code or under any
special or local law in which a different procedure is not provided.
APPEALS
TO THE SUPREME COURT
Section - [109. When appeals lie to the Supreme Court.
Subject to the provisions in
Chapter IV of Part V of the Constitution and such rules as may, from time to
time, be made by the Supreme Court regarding appeals from the Courts of India,
and to the provisions hereinafter contained, an appeal shall lie to the Supreme
Court from any judgment, decree or final order in a civil proceeding of a High
Court, if the High Court certifies-
(i)
that the case involves a substantial question
of law of general importance; and
(ii)
that in the opinion of the High Court the
said question needs to be decided by the Supreme Court.]
Section - 110. [213][Value of subject matters.]
[* * *]
Section - 111. [214][Bar of certain appeals.]
[* * *]
Section - [215][111A. [216][Appeals to Federal Court]
[* * *]
Section - 112. Savings.
[(1)
Nothing contained in this Code shall be deemed-
(a)
to affect the powers of the Supreme Court
under article 136 or any other provision of the Constitution; or
(b)
to interfere with any rules made by the
Supreme Court, and for the time being in force for the presentation of appeals
to that Court, or their conduct before that Court.]
(2) Nothing herein contained applies to any
matter of criminal or admiralty or vice-admiralty jurisdiction or to appeals
from orders and decrees of Prize Courts.
PART
VIII
REFERENCE,
REVIEW AND REVISION
Section - 113. Reference to High Court.
Subject to such conditions
and limitations as may be prescribed, any Court may state a case and refer the
same for the opinion of the High Court, and the High Court may make such order
thereon as it thinks fit:
[Provided
that where the Court is satisfied that a case pending before it involves a
question as to the validity of any Act, Ordinance or Regulation or of any
provision contained in an Act, Ordinance or Regulation, the determination of
which is necessary for the disposal of the case, and is of opinion that such
Act, Ordinance, Regulation or provision is invalid or inoperative, but has not
been so declared by the High Court to which that Court is subordinate or by the
Supreme Court, the Court shall state a case setting out its opinion and the
reasons therefor, and refer the same for the opinion of the High Court.
Explanation. In this
section, “Regulation” means any Regulation of the Bengal, Bombay or Madras Code
or Regulation as defined in the General Clauses Act,1897, (10 of 1897) or in
the General Clauses Act of a State.]
Section - 114. Review.
Subject as aforesaid, any
person considering himself aggrieved-
(a)
by a decree or order from which an appeal is
allowed by this Code, but from which no appeal has been preferred.
(b)
by a decree or order from which no appeal is
allowed by this Code, or
(c)
by a decision on a reference from a Court of
Small Causes, may apply for a review of judgment to the Court which passed the
decree or made the order, and the Court may make such order thereon as it
thinks fit.
State Amendment
Punjab
Amendment
in section 114 of Act V of 1908.- In the Act, in section 114,
for subsection (1), the following shall be substituted:
“(1)
Subject as aforesaid, any person
considering himself aggrieved:
(a)
by a decree or order from which an appeal is
allowed by this Code but from which no appeal has been preferred; or
(b)
by a decree or order from which no appeal is
allowed by this Code –
may apply for a review of
judgment to the Court which passed the decree or made the order, and the Court
may make such order thereon as it thinks fit.”.
[Vide Punjab Act XIV of
2018]
Section - 115. Revision.
[(1)]
The High Court may call for the record of any case which has been decided by
any Court subordinate to such High Court and in which no appeal lies thereto,
and if such subordinate Court appears-
(a)
to have exercised a jurisdiction not vested
in it by law, or
(b)
to have failed to exercise a jurisdiction so
vested, or
(c)
to have acted in the exercise of its
jurisdiction illegally or with material irregularity, the High Court may make
such order in the case as it thinks fit:
[Provided
that the High Court shall not, under this section, vary or reverse any order
made, or any order deciding an issue, in the course of a suit or other proceeding,
except where the order, if it had been made in favour of the party applying for
revision would have finally disposed of the suit or other proceedings.]
[(2)
The High Court shall not, under this section, vary or reverse any decree or
order against which an appeal lies either to the High Court or to any Court
subordinate thereto.
[(3)
A revision shall not operate as a stay of suit or other proceeding before the
Court except where such suit or other proceeding is stayed by the High Court.]
Explanation. In this
section, the expression “any case which has been decided” includes any order
made, or any order deciding an issue in the course of a suit or other
proceeding.]
STATE
AMENDMENTS
Orrisa.
Amendment of section 115. In
the Code of Civil Procedure, 1908 (5 of 1908) for section 115, the following
section shall be substituted, namely:-
115. Revision.-The
High Court, in cases arising out of original suits or other proceedings of the
value exceeding one lakh rupees, and the District Court, in any other case
including a case arising out of an original suit or other proceedings
instituted before the commencement of the Code of Civil Procedure ( Orissa
Amendment) Act, 1991, may call for the record of any case which has been
decided by any Court subordinate to the High Court or the District Court, as
the case may be, and in which no appeal lies thereto, and if such subordinate
Court appears-
(a)
to have failed to exercised a jurisdiction
not vested in it by law; or
(b)
to have failed to exercise a jurisdiction so vested;
or
(c)
to have acted in the exercise of its
jurisdiction illegally or with material irregularity;
the High Court or the
District Court, as the case may be, may make such order in the case as it
thinks fit:
Provided that in respect of
cases arising out of original suits, or other proceedings of any valuation
decided by the District Court, the High Court alone shall be competent to make
an order under this section:
Provided further that the
High Court or the District Court shall not, under this section, vary or reverse
any order, including an order deciding an issue, made in the course of a suit
or other proceedings, except where-
(i)
the order, if so varied or reversed, would
finally dispose of the suit or other proceedings; or
(ii)
the order, if allowed to stand, would
occasion a failure of justice or cause irreparable injury to the party against
whom it was made.
Explanation-In this section,
the expression “ any case which has been decided” includes any order deciding
an issue in the course of a suit or other proceeding.”.
3. Saving.-The
amendment made by this Act shall not affect the validity, invalidity, effect or
consequence of anything already done or suffered, or any jurisdiction already
exercised, and any proceeding instituted or commenced in the High Court under
section 115 of the Code of Civil Procedure, 1908 (5 of 1908) prior to the
commencement of this Act shall, notwithstanding such amendment, continue to be
heard and decided by such Court.
[Vide the Orissa Act 26 of
1991, s. 2]
Amendment of section 115.-In
the Code of Civil Procedure, 1908 (5 of 1908), for section 115, the following
section shall be substituted, namely:-
115. Revision.-
(1)
The High Court, in cases arising out of
original suits or other proceedings of the value exceeding five lakhs rupees and
the District Court, in any other cases, including a case arising out of an
original suit or other proceedings instituted before the commencement of the
Code of Civil Procedure ( Orissa Amendment) Act, 2010, may call for the record
of any case which has been decided by any Court subordinate to the High Court
or the District Court, as the case may be, and in which no appeal lies thereto,
and if such subordinate Court appears-
(a)
to have exercised a jurisdiction not vested
in it by law; or
(b)
to have failed to exercise a jurisdiction so
vested; or
(c)
to have acted in the exercise of its
jurisdiction illegally or with material irregularity, the High Court or the
District Court, as the case may be, may make such order in the case as it
thinks fit:
Provided that in respect of
cases arising out of original suits or other proceedings of any valuation
decided by the District Court, the High Court alone shall be competent to make
an order under this section.
(2)
The High Court or the District Court, as the
case may be, shall not under this section, vary or reverse any order, including
an order deciding an issue, made in the course of a suit or other proceedings,
except where the order, if it had been made in favor of the party applying for
revision, would have finally disposed of the suit or other proceedings.
(3)
A revision shall not operate as a stay of
suit or other proceeding before the Court except where such suit or other
proceeding is stayed by the High Court or District Court, as the case may be.
Explanation-In this section,
the expression, “any case which has been decided” includes any order deciding
an issue in the course of a suit or other proceeding.”.
[Vide the Orissa Act 14 of
2010, s. 2]
Uttar Pradesh.
Amendment of section 115 of
Act V of 1908.-In section 115 of the said Code-
(i)
for the words “High Court”, wherever
occurring, the words “High Court or District Court” shall be substituted; and
(ii)
the following proviso thereto shall be
inserted at the end, namely:-
“Provide that nothing in
this section shall be construed to empower the District Court to call for the
record of any case arising out of an original suit of the value of twenty
thousand rupees or above,”.
[Vide Uttar Pradesh Act 14
of 1970, s. 3]
Uttar Pradesh.
Substitution of new section
for section 115 of 5 of 1908.- For section 115 of the Code
of Civil Procedure, 1908, as amended in its application to Uttar Pradesh
(hereinafter in this Chapter referred to as the said Code), the following
section shall be substituted namely :-
“115.
Revision.-The High Court in cases arising out of original suits of
the value of rupees twenty thousand and above including such suits instituted
before the 20th day of September, 1972, and the District Court in any other
case, including a case arising out of an original suit instituted before the
20th day of September, 1972, may call for the record of any case which has been
decided by any court subordinate to such High Court or District Court, as the
case may be, and in which no appeal lies thereto, and if such subordinate court
appears;
(a)
to have to jgh exercised a jurisdiction not
vested in it by law, or
(b)
to have failed to exercise a jurisdiction so
vested, or
(c)
to have acted in the exercise of its
jurisdiction illegally or with material irregularity, the High Court or the
District Court, as the case may be, may make such order in the case as it
thinks fit;
Provided that in respect of
cases decided before the 20th day of September, 1972, and also all cases
arising out of original suits of any valuation decided by the District Court,
the High Court alone shall be competent to make a order under this section.”
[Vide Uttar Pradesh Act 19
of 1973, s. 2]
Amendment of section 115 of
Act V of 1908.- In section 115 of the Code of Civil
Procedure, 1908 as amended in its application to Uttar Pradesh, hereinafter
referred to as the said Code:-
(i)
for the words “the High Court or District
Court”, where they first occur, the words “the High Court in cases arising out
of original suits of the values of twenty thousand rupees and above, and the
District Court in any other case” shall be substituted and after thewords “High
Court or District Court” where they occur the second time, the commas and
words, “as the case may be”, shall be inserted;
(ii)
the proviso shall be omitted.
[Vide Uttar Pradesh Act 37
of 1972, s. 6]
Uttar Pradesh
Substitution of section 115.- For
section 115 of the said Code, the following section shall be substituted,
namely :-
“115.
Revision.-- The High Court, in cases arising out of
original suits or other proceedings of the value of twenty thousand rupees and
above, including such suits or other proceedings instituted before August 1,
1978, and the District Court in any other case, including a case arising out of
an original suit or other proceedings instituted before such date, may call for
the record of any case which has been decided by any court subordinate to such
High Court or District Court as the case may be, and in which no appeal lies
thereto, and if such subordinate court appears-
(a)
to have exercised a jurisdiction not vested
in it by law; or
(b)
to have failed to exercise a jurisdiction so
vested; or
(c)
to have acted in the exercise of its
jurisdiction illegally or with material irregularity;
the High Court or the
District Court, as the case may be, may make such order in the case as it
thinks fit;
Provided that in respect of
cases arising out of original suits or other proceedings of any valuation,
decided by the District Court, the High Court alone shall be competent to make
an order under this section;
Provided further that the
High Court or the District Court shall no under his section, vary or reverse
any order including an order deciding an issue, made in the course of a suit or
other proceeding, except where, -
(i)
the order, if so varied or reversed, would
finally dispose of the suit or other proceeding; or
(ii)
the order, if allowed to stand, would
occasion a failure of justice or cause irreparable injury to the party against
whom it was made.
Explanation - In this
section, the expression ‘any case which has been decided’ includes any order
deciding an issue in the course of a suit of other Proceeding.”
[Vide Uttar Pradesh Act 31
of 1978, s. 3]
Uttar Pradesh.
Amendment of section 115 of
Act no. 5 of 1908.-In section 115 of the Code of Civil
Procedure, 1908, hereinafter int his Chapter referred to as the said Code,-
(a)
for the words “of the value of the twenty
thousand rupees and above including such suits or other proceedings instituted
before August 1, 1978” the following words shall be substituted, namely -
“of the value exceeding one
lakh rupees or such higher amount not exceeding five lakh rupees as the High
Court may from time to time fix, by notification published in the official
Gazette including such suits or other proceedings instituted before the date of
commencement of the Uttar Pradesh Civil Laws (Amendment) Act, 1991, or as the
case may be, the date of commencement of such notification.”
(b)
after the
second proviso, the
following proviso shall
be inserted, namely;
“Provided also that where a
proceeding of the nature in which the District Court may call for the record
and pass orders under this section was pending immediately before the relevant
date of commencement referred to above, in the High Court, such court shall proceed
to dispose of the same.”
[Vide Uttar Pradesh Act 17
of 1991, s. 7]
Substitution of section 115
of Act no. 5 of 1908.- For section 115 of the Code of Civil
Procedure, 1908, hereinafter referred to as the principal Act, the following
section shall be substituted and be deemed to have been substituted with effect
from July 1, 2002, namely:-
“115.
Revision.-
(1)
A superior court may revise an order passed
in a case decided in an original suit or other proceeding by a subordinate court
where no appeal lies against the order and where the subordinate court has -
(a)
exercised a jurisdiction not vested in it by
law; or
(b)
failed to exercise a jurisdiction so vested;
or
(c)
acted in exercise of its jurisdiction
illegally or with material irregularity.
(2)
A revision application under sub-section (1),
when filed in the High Court, shall contain a certificate on the first page of
such application, below the title of the case, to the effect that no revision
in the case lies to the district court but lies only to the High Court either
because of valuation or because the order sought to be revised was passed by
the district court.
(3)
The superior court shall not, under this
section, very or reverse any order made except where,-
(i)
the order, if it had been made in favour of
the party applying for revision, would have finally disposed of the suit or
other proceeding; or
(ii)
the order, if allowed to stand, would
occasion a failure of justice or cause irreparable injury to the party against
whom it is made.
(4)
A revision shall not operate as a stay of
suit or other proceeding before the court except where such suit or other
proceeding is stayed by the superior court.
Explanation - I In this
section,-
(i)
the expression ‘superior court’ means -
(a)
the district court, where the valuation of a
case decided by a court subordinate to it does not exceed five lakh rupees;
(b)
the High Court, where the order sought to be
revised was passed in a case decided by the district court or where the value
of the original suit or other proceedings in a case decided by a court
subordinate to the district court exceed five lakh rupees;
(ii)
the expression ‘order’ includes an order
deciding an issue in any original suit or other proceedings.
Explanation -II. The
provisions of this section shall also be applicable to orders passed, before or
after the commencement of this section, in original suits or other proceedings
instituted before such commencement.”
[Vide Uttar Pradesh Act 14
of 2003, s. 2]
Madhya
Pradesh-
Substitution Of Section 115 :-
For
Section 115 of the Principal Act, the following section shall be substituted
namely :-
“115.
Revision.-The High Court, in cases
arising out of original suits or other proceedings of the value of twenty
thousand rupees and above, and the District Judge in any other case may call
for the record of any case which has been decided by any Court subordinate to
such High Court or District Judge, as the case may be, and in which no appeal
lies thereto, and if such subordinate Court appears-
(a)
to have exercised a
jurisdiction not vested in it by law; or
(b)
to have failed to
exercise a jurisdiction so vested; or
(c)
to have acted in
the exercise of its jurisdiction illegally or with material irregularity; the
High Court or the District Judge, as the case may be, make such order in the
case as it thinks fit:
Provided
that in respect of cases arising out of original suits or other proceedings of
any valuation, decided by the District Judge, the High Court alone shall be
competent to make an order under this section :
Provided
further that the High Court or the District Judge shall not, under this
section, vary or reverse any order including an order deciding an issue, made
in the course of a suit or other proceedings, except where,-
(i)
the order, if so
varied or reversed, would finally dispose of the suit or other proceeding; or
(ii)
the order, if
allowed to stand, would occasion a failure of justice or cause irreparable
injury to the party against whom it was made.
Explanation.-In
this section, the expression “any case which has been decided” includes any
order deciding an issue in the course of a suit or other proceeding.”
[Vide Madhya Pradesh Act 29
of 1984]
Punjab
Amendment
in section 115 of Act V of 1908.- In the Act, in section 115:
(a)
in subsection (1), for the second proviso,
the following shall be substituted:
“Provided further that the
subordinate court shall provide copies of the documents to a person within
three days of the decision, and the High Court shall dispose of such application
within six months,”; and
(b)
after subsection (4), the following new
subsection (5) shall be inserted:
“(5)
No proceedings in revision shall be
entertained by the High Court against an order passed by the District Court
under section 104.”.
[Vide Punjab Act XIV of
2018]
West
Bengal
Insertion
of new section 115A in Act 5 of 1908 :-
In Part VIII of the
principal Act, after section 115, the following section shall be inserted :-
“115A. District Courts powers of
revision.--
(1)
A District Court may exercise all or any of
the powers which may be exercised by the High Court under section 115.
(2)
Where any proceeding by way of revision is
commenced before a District Court in pursuance of the provisions of sub-section
(1), the provisions of section 115 shall, so far as may be, apply to such
proceeding and references in the said section to the High Court shall be
construed as references to the District Court.
(3)
Where any proceeding for revision is
commenced before the District Court, the decision of the District Court on such
proceeding shall be final and no further proceeding by way of revision shall be
entertained by the High Court or any other Court.
(4)
If any application for revision has been made
by any party either to the High Court under section 115 or to the District
Court under this section, no further application by the same party shall be
entertained by the other of them.
(5)
A Court of an Additional Judge shall have and
may exercise all the powers of a District Court under this section in respect
of any proceeding which may be transferred to it by or under any general or
special order of the District Court.”
[Vide West Bengal 15 of
1988]
Uttaranchal
Substitution
of Section 115 of Act no. 5 of 1908 Revision
For section 115 of the Code
of Civil Procedure, 1908, hereinafter referred to as the principal Act, the
following, section shall be substituted, namely-
"115
(1) A superior court may revise an order passed in a case decided in an
original suit or other proceeding by a subordinate court where no appeal lies
against the order and where the subordinate court has-
(a)
exercised a jurisdiction not vested in it by
law; or
(b)
failed to exercise a jurisdiction so vested;
or
(c)
acted in exercise of its jurisdiction
illegally or with material irregularity.
(2) A revision application
under sub-section (1), when filed in the High Court, shall contain a
certificate on the first page of such application, below the title of the case,
to the effect that no revision in the case lies to the district court but lies
only to the High Court either because of valuation or because the order sought
to be revised was passed by the district court.
(3) The superior court shall
not, under this section, vary or reverse any order made except where--
(i)
the order, if it had been made in favour of
the party applying for revision, would have finally disposed of the suit or
other proceeding; or
(ii)
the order, if allowed to stand, would
occasion a failure of justice or cause irreparable injury to the party against
whom it is made.
(4) A revision shall not operate
as a stay of suit or other proceeding before the court except where such suit
or other proceeding is stayed by the superior court.
Explanation I,-In this
section--
(i)
the expression 'superior court' means--
(a)
The district court, where the valuation of a
case decided by a court subordinate to it does not exceed five lakh rupees;
(b)
the High Court, where the order sought to be
revised was passed in a case decided by the district court or where the value
of the original suit or other proceedings in a case decided by a court
subordinate to the district court exceed five lakh rupees;
(ii)
the expression "order" includes an
order deciding an issue in any original suit or other proceedings.
Explanation. II,--The
provisions of this section shall also be applicable to orders passed, before or
after the commencement of this section, in Original suits or other proceedings
instituted before such comimencement.":
Explanation III,--The
provisions of this section shall not be applicable to the revisions already
filed in the High Court before the commencement of this section.
[Vide Uttaranchal Act 01 of
2006]
PART
IX
SPECIAL
PROVISIONS RELATING TO THE [HIGH
COURTS [NOT BEING THE COURT
OF A JUDICIAL COMMISSIONER]
Section - 116. Part to apply only to certain High Courts.
This Part applies only to
High Courts [not
being the court of a Judicial Commissioner].
Section - 117. Application of Code to High Courts.
Save as provided in this
Part or in Part X or in rules, the provisions of this Court shall apply to such
High Courts.
Section - 118. Execution of decree before ascertainment of costs.
Where any such High Court
considers it necessary that a decree passed in the exercise of its original
civil jurisdiction should be executed before the amount of the costs incurred in
the suit can be ascertained by taxation, the Court may order that the decree
shall be executed forthwith, except as to so much thereof as relates to the
costs;
and, as to so much thereof
as relates to the costs, that the decree may be executed as soon as the amount
of the costs shall be ascertained by taxation.
Section - 119. Unauthorized persons not to address Court.
Nothing in this Code shall
be deemed to authorize any person on behalf of another to address the Court in
the exercise of its original civil jurisdiction, or to examine witnesses,
except where the Court shall have in the exercise of the power conferred by its
charter authorized him so to do, or to interfere with the power of the High
Court to make rules concerning advocates, vakils and attorneys.
Section - 120. Provisions not applicable to High Court in original civil jurisdiction.
(1)
The following provisions shall not apply to
the High Court in the exercise of its original civil jurisdiction, namely,
sections 16, 17 and 20.
(2)
[* *
* * *]
PART
X
RULES
Section - 121. Effect of rules in First Schedule.
The rules in a First
Schedule shall have effect as if enacted in the body of this Code until
annulled or altered in accordance with the provisions of this Part.
Section - 122. Power of certain High Courts to make rules.
[High
Courts [not
being the Court of a Judicial Commissioner]] ***
may, from time to time after previous publication, make rules regulating their
own procedure and the procedure of the Civil Courts subjects to their
superintendence, and may by such rules annul, alter or add to all or any of the
rules in the First Schedule.
Section - 123. Constitution of Rules Committees in certain States.
(1)
A Committee, to be called the Rule Committee,
shall be constituted at [the
town which is the usual place of sitting of each of the High Courts ***
referred to in section 122].
(2)
Each such Committee shall consist of the
following persons, namely:-
(a) three Judges of the High Court established at
the town at which such Committee is constituted, one of whom at least has
served as a District Judge or ***
a Divisional Judge for three years,
[(b)
two legal practitioners enrolled in that Court,]
[(c)
a Judge of a Civil Court subordinate to the High Court, ***
(d)
[* * * * *]
(3)
The members of each Committee shall be
appointed by the [High
Court], which shall also nominate one of their number to be President:
[* *
* * *]
(4)
Each member of any such Committee shall hold
office for such period as may be prescribed by the [High
Court] in this behalf; and whenever any member retires, resigns, dies or ceases
reside in the State in which the Committee was constituted, or becomes
incapable of acting as a member of the Committee, the said [High
Court] may appoint another person to be a member in his stead.
(5)
There shall be a secretary to each such
Committee, who shall be appointed by the [High
Court] and shall receive such remuneration as may be provided in this behalf [by
the State Government].
STATE
AMENDMENTS
Assam.
For clause (a) of
sub-section (2) of section 123 the following shall be substituted:
“(a)
three Judges of the High Court
established at the town at which such Committee is constituted, provided that
the Chief Justice may appoint only two Judges of the High Court on the Committee
if the number of Judges of the High Court does not exceed three.”
[Vide Assam Act 8 of 1953,
sec. 2.]
Tamil Nadu.
Amendment of section 123,
Central Act V of 1908.-In section (2) of section 123 of the
Code of Civil Procedure, 1908 ( Central Act V of 1908),-
(a)
in clause (b), for the words “two legal
practitioners”, the words “three legal practitioners” shall be substituted.
(b)
in clause (d), the word “Madras” shall be
omitted.
[Vide
Tamil Nadu Act 15 of 1970, s. 2]
Section - 124. Committee to report to High Court.
Every Rule Committee shall
make a report to the High Court established at the town at which it is
constituted on any proposal to annul, alter or add to the rules in the First
Schedule or to make new rules, and before making any rules under section 122
the High Court shall take such report into consideration.
Section - 125. Power of other High Courts to make rules.
High Courts, other than the
Courts specified in section 122, may exercise the powers conferred by that
section in such manner and subject to such conditions [as
[the
State Government] may determine:]
Provided that any such High
Court may, after previous publication, make a rule extending within the local
limits of its jurisdiction any rules which have been made by any other High Court.
Section - [126. Rules to be subject to approval.
Rules made under the
foregoing provisions shall be subject to the previous approval of the
Government of the State in which the Court whose procedure the rules regulate
is situate or, if that Court is not situate in any State, to the previous
approval of [Central
Government.]]
Section - 127. Publication of rules.
Rules so made and [approved]
shall be published in the [Official
Gazette], and shall from the date of publication or from such other date as may
be specified have the same force and effect, within the local limits of the
jurisdiction of the High Court which made them, as if they had been contained
in the First Schedule.
Section - 128. Matters for which rules may provide.
(1)
Such rules shall be not inconsistent with the
provisions in the body of this code, but, subject thereto, may provide for any
matters relating to the procedure of Civil Courts.
(2)
In particular, and without prejudice to the
generality of the powers conferred by sub-section (1), such rules may provide
for all or any of the following matters, namely:
(a)
the service of summonses, notices and other
processes by post or in any other manner either generally or in any specified
areas, and the proof of such service;
(b)
the maintenance and custody, while under
attachment, of live-stock and other movable property, the fees payable for such
maintenance and custody, the sale of such live-stock and property, and the
proceeds of such sale;
(c)
procedure in suits by way of counterclaim,
and the valuation of such suits for the purposes of jurisdiction;
(d)
procedure in garnishee and charging orders
either in addition to, or in substitution for, the attachment and sale of
debts;
(e)
procedure where the defendant claims to be
entitled to contribution or indemnity over against any person whether a party
to the suit or not;
(f)
summary procedure-
(i)
in suits in which the plaintiff seeks only to
recover a debt or liquidated demand in money payable by the defendant, with or
without interest, arising-
on a contract express or
implied; or on an enactment where the sum sought to be recovered is a fixed sum
of money or in the nature of a debt other than a penalty; or
on a guarantee, where the
claim against the principal is in respect of a debt or a liquidated demand only;
or on a trust; or
(ii)
in suits for the recovery of immovable
property, with or without a claim for rent or mesne profits, by a landlord
against a tenant whose term has expired or has been duly determined by notice
to quit, or has become liable to forefeiture for non-payment of rent, or
against persons claiming under such tenant;
(g)
procedure by way of originating summons;
(h)
consolidation of suits, appeals and other
proceedings;
(i)
delegation to any Registrar, Prothonotary or
Master or other official of the Court of any judicial, quasi-judicial and non
judicial duties; and
(j)
all forms, registers, books, entries and
accounts which may be necessary or desirable for the transaction of the
business of Civil Courts.
Section - 129. Power of High Courts to make rules as to their original Civil procedure.
Notwithstanding anything in
this Code, any High Court [not
being the Court of a Judicial Commissioner] may make such rules not
inconsistent with the Letters Patent [or
order] [or
other law] establishing it to regulate its own procedure in the exercise of its
original civil jurisdiction as it shall think fit, and nothing herein contained
shall affect the validity of any such rules in force at the commencement of
this Code.
Section - [130. Powers of other High Courts to make rules as to matters other than procedure.
A High Court [not
being a High Court to which section 129 applies] may, with the previous
approval of the State Government, make with respect to any matter other than
procedure any rule which a High Court [for
a ***
State] might under [article
227 of the Constitution] make with respect to any such matter for any part of
the territories under its jurisdiction which is not included within the limits
of a presidency town.]
Section - 131. Publication of rules.
Rules made in accordance
with section 129 or section 130 shall be published in the [Official
Gazette] and shall from the date of publication or from such other date as may
be specified have the force of law.
PART
XI
MISCELLANEOUS
Section - 132. Exemption of certain women from personal appearance.
(1)
Women who, according to the customs and manners
of the country, ought not to be compelled to appear in public shall be exempt
from personal appearance in Court.
(2)
Nothing herein contained shall be deemed to
exempt such women from arrest in execution of civil process in any case in
which the arrest of women is not prohibited by this Code.
Section - 133. Exemption of other persons.
[(1)
The following persons shall be entitled to exemption from personal appearance
in Court, namely:-
(i)
the President of India;
(ii)
the Vice-President of India;
(iii)
the Speaker of the House of the People;
(iv)
the Ministers of the Union;
(v)
the Judges of the Supreme Court;
(vi)
the Governors of States and the
administrators of Union territories;
(vii)
the Speakers of the State Legislative
Assemblies;
(viii)
the Chairman of the State Legislative Councils;
(ix)
the Ministers of States;
(x)
the Judges of the High Courts; and
(xi)
the persons to whom section 87B applies.]
(2) [*
* * * *]
(3) Where any person ***
claims the privilege of such exemption, and it is consequently necessary to
examine him by commission, he shall pay the costs of that commission, unless
the party requiring his evidence pays such costs.
Section - 134. Arrest other than in execution of decree.
The provisions of sections
55, 57 and 59 shall apply, so far as may be, to all persons arrested under this
Code.
Section - 135. Exemption from arrest under civil process.
(1)
No Judge, Magistrate or other judicial
officer shall be liable to arrest under civil process while going to, presiding
in, or returning from, his Court.
(2)
Where any matter is pending before a tribunal
having jurisdiction therein, or believing in good faith that it has such
jurisdiction, the parties thereto, their pleaders, mukhtars, revenue-agents and
recognized agents, and their witnesses acting in obedience to a summons, shall
be exempt from arrest under civil process other than process issued by such
tribunal for contempt of Court while going to or attending such tribunal for
the purpose of such matter, and while returning from such tribunal.
(3)
Nothing in sub-section (2) shall enable a
judgment-debtor to claim exemption from arrest under an order for immediate
execution or where such judgment-debtor attends to show cause why he should not
be committed to prison in execution of a decree.
Section - [135A. Exemption of members of legislative bodies from arrest and detention under civil process.
[(1)
No person shall be liable to arrest or detention in prison under civil process-
(a)
if he is a member of-
(i)
either House of Parliament, or
(ii)
the Legislative Assembly or Legislative Council
of a State, or
(iii)
a Legislative Assembly of a Union territory, during
the continuance of any meeting of such House of Parliament or, as the case may
be, of the Legislative Assembly or the Legislative Council;
(b)
if he is a member of any committee of-
(i)
either House of Parliament, or
(ii)
the Legislative Assembly of a State or Union
territory, or
(iii)
the Legislative Council of a State, during
the continuance of any meeting of such committee;
(c)
if he is a member of-
(i)
either House of Parliament, or
(ii)
a Legislative Assembly or Legislative Council
of a State having both such Houses, during the continuance of a joint sitting,
meeting, conference or joint committee of the Houses of Parliament or, Houses
of the State Legislature, as the case may be, and during the forty days before
and after such meeting, sitting or conference.]
(2) A person released from detention under
sub-section (1) shall, subject to the provisions, of the said sub-section, be
liable to re-arrest and to the further detention to which he would have been
liable if he had not been released under the provisions of sub-section (1).]
Section - 136. Procedure where person to be arrested or property to be attached is outside district.
(1)
Where an application is made that any person
shall be arrested or that any property shall be attached under any provision of
this Code not relating to the execution of decrees, and such person resides or
such property is situate outside the local limits of the jurisdiction of the
Court to which the application is made, the Court may, in its discretion,
issue, a warrant of arrest of make an order of attachment, and send to the
District Court within the local limits of whose jurisdiction such person or
property resides or is situate a copy of the warrant or order, together with the
probable amount of the costs of the arrest or attachment.
(2)
The District Court shall, on receipt of such
copy and amount, cause the arrest or attachment to be made by its own officers,
or by a Court subordinate to itself, and shall inform the Court which issued or
made such warrant or order of the arrest or attachment.
(3)
The Court making an arrest under this section
shall send the person arrested to the Court by which the warrant of arrest was
issued, unless he shows cause to the satisfaction of the former Court why he
should not be sent to the later Court, or unless he furnishes sufficient
security for his appearance before the later Court or for satisfying any decree
that may be passed against him by that Court, in either of which cases the
Court making the arrest shall release him.
(4)
Where a person to be arrested or movable
property to be attached under this section is within the local limits of the
ordinary original civil jurisdiction of the High Court of Judicature at Fort
William in Bengal or at Madras or at Bombay, ***
the copy of the warrant of arrest or of the order of attachment, and the
probable amount of the costs of the arrest or attachment, shall be sent to the
Court of Small- Causes of Calcutta, Madras [or
Bombay], as the case may be, and that Court, on receipt of the copy and amount,
shall proceed as if it were the District Court.
Section - 137. Language of subordinate Courts.
(1)
The language which, on the commencement of
this Code, is the language of any Court subordinate to a High Court shall
continue to be the language of such subordinate Court until the State
Government otherwise directs.
(2)
The State Government may declare what shall
be the language of any such Court and in what character applications to and
proceedings in such Courts shall be written.
(3)
Where this Court requires or allows anything
other that the recording of evidence to be done in writing in any such Court,
such writing may be in English; but if any party or his pleader is unacquainted
with English a translation into the language of the Court shall, at his
request, be supplied to him; and the Court shall make such order as it thinks
fit in respect of the payment of the costs of such translation.
STATE
AMENDMENT
Rajasthan.
Amendment of section 137,
Central Act V of 1908.-In section 137 of the Code of Civil
Procedure, 1908 (Central Act V of 1908), in its application to the State of
Rajasthan, for sub-section (3), the following sub-section shall be substituted,
namely:-
"(3)
Wherever this Code requires or allows
anything other than the recording of evidence to be done in writing in any such
court, such writing shall be in Hindi in Devnagri Script with the interna-
tional form of Indian numerals :
Provided that the court may
in its discretion accept such writing in English on the undertaking of the
party filing such writing, to file a Hindi translation of the same, within such
time as may be granted by the court and the opposite party shall have a right
to have a copy of such writing in Hindi."
[Vide Rajasthan Act 7 of
1983, s. 2]
Section - [138. Power of High Court to require evidence to be recorded in English.
(1)
The [High
Court] may, by notification in the Official Gazette, direct with respect to any
Judge specified in the notification, or falling under a description set forth
therein, that evidence in cases in which an appeal is allowed shall be taken
down by him in the English language and in manner prescribed.]
(2)
Where a Judge is prevented by any sufficient
reason from complying with a direction under sub-section (1), he shall record
the reason and cause the evidence to be taken down in writing from his
dictation in open Court.
Section - 139. Oath on affidavit by whom to be administered.
In the case of any affidavit
under this Code-
(a)
any Court or Magistrate, or
[(aa)
any notary appointed under the Notaries Act, 1952 (53 of 1952); or]
(b)
any officer or other person whom a High Court
may appoint in this behalf, or
(c)
any officer appointed by any other Court
which the State Government has generally or specially empowered in this behalf,
may administer the oath to the deponent.
STATE
AMENDMENT
Uttar Pradesh
Amendment of section 139 of
Act no. 5 of 1908.- In section 139 of the Code of Civil
Procedure, 1908, for clauses (b) and (c), the following shall be substituted
and be deemed always to have been substituted, namely:
“(b)
any person appointed in this behalf by a High Court or by a District Court; or
(c) any person appointed in this behalf by
such other Court as the State Government may, by general or special order, empower in this
behalf”;
[Vide Uttar Pradesh Act 11
of 1981, s. 2]
Section - 140. Assessors in causes of salvage, etc.
(1)
In any admiralty or vice-admiralty cause of
salvage to wage or collision the Court, whether it be exercising its original
or its appellate jurisdiction, may, if it thinks fit, and shall upon request of
either party to such cause, summon to its assistance, in such manner as it may
direct or as may be prescribed, two competent assessors; and such assessors
shall attend and assist accordingly.
(2)
Every such assessor shall receive such fees
for his attendance, to be paid by such of the parties as the Court may direct
or as may be prescribed.
Section - 141. Miscellaneous proceedings.
The procedure provided in
this Code in regard to suits shall be followed, as far as it can be made
applicable, in all proceedings in any Court of civil jurisdiction.
[Explanation.
In this section, the expression “proceedings” includes proceedings under Order
IX, but does not include any proceedings under article 226 of the
Constitution.]
Section - 142. Orders and notices to be in writing.
All orders and notices
served on or given to any person under the provisions of this Code shall be in
writing.
Section - 143. Postage.
Postage, where chargeable on
a notice, summons or letter issued under this Code and forwarded by post, and
the fee for registering the same, shall be paid within a time to be fixed
before the communication is made:
Provided that the State
Government ***
may remit such postage, or fee, or both, or may prescribe a scale of court-fees
to be levied in lieu thereof.
Section - 144. Application for restitution.
(1)
Where and in so far as a decree [or
an order] is [varied
or reversed in any appeal, revision or other proceeding or is set aside or
modified in any suit instituted for the purpose, the Court which passed the
decree or order] shall, on the application of any party entitled to any benefit
by way of restitution or otherwise, cause such restitution to be made as will,
so far as may be, place the parties in the position which they would have
occupied but for such decree [or
order] or [such
part thereof as has been varied, reversed, set aside or modified]; and for this
purpose, the Court may make any orders, including orders for the refund of
costs and for the payment of interest, damages, compensation and mesne profits,
which are properly [consequential
on such variation, reversal, setting aside or modification of the decree or
order].
[Explanation.
For the purposes of sub-section (1), the expression “Court which passed the
decree or order” shall be deemed to include,-
(a)
where the decree or order has been varied or
reversed in exercise of appellate or revisional jurisdiction, the Court of
first instance;
(b)
where the decree or order has been set aside
by a separate suit, the court of first instance which passed such decree or
order.
(c)
where the Court of first instance has ceased
to exist or has ceased to have jurisdiction to execute, it, the Court which, if
the suit wherein the decree or order was passed were instituted at the time of
making the application for restitution under this section, would have
jurisdiction to try such suit.]
(2)
No suit shall be instituted for the purpose
of obtaining any restitution or other relief which could be obtained by
application under sub-section (1).
Section - 145. Enforcement of liability of surety.
Where any person [has
furnished security or given a guarantee]-
(a)
for the performance of any decree or any part
thereof, or
(b)
for the restitution of any property taken in
execution of a decree, or
(c)
for the payment of any money, or for the
fulfilment of any condition imposed on any person, under an order of the Court
in any suit or in any proceeding consequent thereon, [the
decree or order may be executed in the manner therein provided for the
execution of decrees, namely:
(i)
if he has rendered himself personally liable,
against him to that extent;
(ii)
if he has furnished any property as security,
by sale of such property to the extent of the security;
(iii)
if the case falls both under clauses (i) and
(ii) then to the extent specified in those clauses, and such person shall, be
deemed to be a party within the meaning of section 47]:
Provided that such notice as
the Court in each case thinks sufficient has been given to the surety.
Section - 146. Proceedings by or against representatives.
Save as otherwise provided
by this Code or by any law for the time being in force, where any proceeding may
be taken or application made by or against any person then the proceeding may
be taken or the application may be made by or against any person claiming under
him.
Section - 147. Consent or agreement by persons under disability.
In all suits to which any
person under disability is a party, any consent or agreement, as to any
proceeding shall, if given or made with the express leave of the Court by the
next friend or guardian for the suit, have the same force and effect as if such
person, were under no disability and had given such consent or made such
agreement.
Section - 148. Enlargement of time.
Where any period is fixed or
granted by the Court for the doing of any act prescribed or allowed by this
Code, the Court may, in its discretion, from time to time, enlarge such period,
[not
exceeding thirty days in total,] even though the period originally fixed or
granted may have expired.
Section - [148A. Right to lodge a caveat.
(1)
Where an application is expected to be made,
or has been made, in a suit or proceeding instituted, or about to be
instituted, in a Court, any person claiming a right to appear before the Court
on the hearing of such application may lodge a caveat in respect thereof.
(2)
Where a caveat has been lodged under
sub-section (1), the person by whom the caveat has been lodged (hereinafter
referred to as the caveator) shall serve a notice of the caveat by registered
post, acknowledgement due, on the person by whom the application has been, or
is expected to be, made, under sub-section (1).
(3)
Where, after a caveat has been lodged under
sub-section (1), any application is filed in any suit or proceeding, the Court,
shall serve a notice of the application on the caveator.
(4)
Where a notice of any caveat has been served
on the applicant, he shall forthwith furnish the caveator at the caveator’s
expense, with a copy of the application made by him and also with copies of any
paper or document which has been, or may be, filed by him in support of the
application.
(5)
Where a caveat has been lodged under sub-section
(1), such caveat shall not remain in force after the expiry of ninety days from
the date on which it was lodged unless the application referred to in
sub-section (1) has been made before the expiry of the said period.]
Section - 149. Power to make up deficiency of court-fees.
Where the whole or any part
of any fee prescribed for any document by the law for the time being in force
relating to court-fees has not been paid, the Court may, in its discretion, at
any stage, allow the person, by whom such fee is payable, to pay the whole or
part, as the case may be, of such court-fee; and upon such payment the
document, in respect of which fee is payable, shall have the same force and
effect as if such fee had been paid in the first instance.
Section - 150. Transfer of business.
Save as otherwise provided,
where the business of any Court is transferred to any other Court, the Court to
which the business is so transferred shall have the same powers and shall
perform the same duties as those respectively conferred and imposed by or under
this Code upon the Court from which the business was so transferred.
Section - 151. Saving of inherent powers of Court.
Nothing in this Code shall
be deemed to limit or otherwise affect the inherent power of the Court to make
such orders as may be necessary for the ends of justice or to prevent abuse of
the process of the Court.
State Amendment
Punjab
Amendment
in section 151 of Act V of 1908.- In the Act, in section 151,
after the word “Court” occurring for the first time, the expression “, to be
exercised after recording reasons in writing,” shall be inserted.
[Vide Punjab Act XIV of
2018]
Section - 152. Amendment of judgments, decrees or orders.
Clerical or arithmetical
mistakes in judgments, decrees or orders or errors arising therein from any
accidental slip or omission may at any time be corrected by the Court either of
its own motion or on the application of any of the parties.
Section - 153. General power to amend.
The Court may at any time,
and on such terms as to costs or otherwise as it may think fit, amend any
defect or error in any proceeding in a suit; and all necessary amendments shall
be made for the purpose of determining the real question or issue raised by or
depending on such proceeding.
Section - [153A. Power to amend decree or order where appeal is summarily dismissed.
Where an Appellate Court
dismisses an appeal under rule 11 of Order XLI, the power of the Court to
amend, under section 152, the decree or order appealed against may be exercised
by the Court which had passed the decree or order in the first instance,
notwithstanding that the dismissal of the appeal has the effect of confirming
the decree or order, as the case may be, passed by the Court of first instance.
Section - 153B. Place of trial to be deemed to be open Court.
The place in which any Civil
Court is held for the purpose of trying any suit shall be deemed to be an open
Court, to which the public generally may have access so far as the same can
conveniently contain them:
Provided that the presiding
Judge may, if he thinks fit, order at any stage of any inquiry into or trial of
any particular case, that the public generally, or any particular person, shall
not have access to, or be or remain in, the room or building used by the
Court.]
Section - 154. [281][Saving of present right of appeal.]
[* * *]
Section - 155. [282][Amendment of certain Acts.]
[* * *]
Section - 156. [283][Repeals.]
[* * *]
Section - 157. Continuance of orders under repealed enactments.
Notifications published, declarations
and rules made, places appointed, agreements filed, scales prescribed, forms
framed, appointments made and powers conferred under Act VIII of 1859 or under
any Code of Civil Procedure or any Act amending the same or under any other
enactment hereby repealed shall, so far as they are consistent with this Code, have
the same force and effect as if they had been respectively published, made,
appointed, filed, prescribed, framed and conferred under this Code and by the
authority empowered thereby in such behalf.
Section - 158. Reference to Code of Civil Procedure and other repealed enactments.
In every enactment or
notification passed or issued before the commencement of this Code in which
reference is made to or to any Chapter or section of Act VIII of 1859 or any
Code of Civil Procedure or any Act amending the same or any other enactment
hereby repealed, such reference shall, so far as may be practicable, be taken
to be made to this Code or to its corresponding Part, Order, section or rule.
THE FIRST
SCHEDULE
ORDER I PARTIES TO SUITS
Rule - [1. Who may be joined
as plaintiffs.
All persons may be joined in
one suit as plaintiffs where-
(a)
any right to relief in respect of, or arising
out of, the same act or transaction or series of acts or transactions is
alleged to exist in such persons, whether jointly, severally or in the
alternative; and
(b)
if such persons brought separate suits, any
common question of law or fact would arise.]
Rule - 2. Power of Court to order separate
trial.
Where it appears to the
Court that any joinder of plaintiffs may embarrass or delay the trial of the
suit, the Court may put the plaintiffs to the election or order separate trials
or make such other order as may be expedient.
Rule - [3.
Who may be joined as defendants.
All persons may be joined in
one suit as defendants where-
(a)
any right to relief in respect of, or arising
out of, the same act or transaction or series of acts or transactions is
alleged to exist against such persons, whether jointly, severally or in the
alternative; and
(b)
if separate suits were brought against such
persons, any common question of law or fact would arise.]
Rule - [3A.
Power to order separate trials where joinder of defendants may embarrass or
delay trial.
Where it appears to the
Court that any joinder of defendants may embarrass or delay the trial of the
suit, the Court may order separate trials or make such other order as may be
expedient in the interests of justice.]
STATE
AMENDMENTS
Madhya
Pradesh-
Amendment
Of Order I Of First Schedule :-
In Order I of First Schedule
to the Principal Act after Rule 3-A, the following Rule shall be inserted,
namely :-
“3-B.
Conditions for entertainment of suits.-
(1)
No suit or proceeding for,-
(a)
declaration of title or any right over any
agricultural land, with or without any other relief, or
(b)
specific performance of any contract for
transfer of any agricultural land, with or without any other relief, shall be
entertained by any Court, unless the plaintiff or applicant, as the case may
be, knowing or having reason to believe that return under Section 9 of the
Madhya Pradesh Ceiling on Agricultural Holdings Act, 1960 (No. 20 of 1960) in
relation to land aforesaid has been or is required to be filed by him or by any
other person before competent authority appointed under that Act, has imp
leaded the State of Madhya Pradesh as one of the defendants or non-applicants,
as the case may be, to such suit or proceeding.
(2)
No Court shall proceed with pending suit or
proceeding referred to in sub-rule (1) unless, as soon as may be, the State
Government is so imp leaded as a defendant or non-applicant.
Explanation.-The expression
“suit or proceeding” used in this sub-rule shall include appeal, reference or
revision, but shall not include any proceeding for or connected with execution
of any decree or final order passed in such suit or proceeding”
[Vide Madhya Pradesh Act 29
of 1984]
Rule - 4. Court may give judgment for or
against one or more of joint parties.
Judgment may be given
without any amendment -
(a)
for such one or more of the plaintiffs as may
be found to be entitled to relief, for such relief as he or they may be
entitled to;
(b)
against such one or more of the defendants as
may be found to be liable, according to their respective liabilities.
Rule - 5. Defendant need not be interested in
all the relief claimed.
It shall not be necessary
that every defendant shall be interested as to all the relief claimed in any
suit against him.
Rule - 6. Joinder of parties liable on same
contract.
The plaintiff may, at his option,
join as parties to the same suit all or any of the persons severally, or
jointly and severally, liable on any one contract, including parties to bills
of exchange, hundis and promissory notes.
Rule - 7. When plaintiff in doubt from whom
redress is to be sought.
Where the plaintiff is in
doubt as to the persons from whom he is entitled to obtain redress, he may join
two or more defendants in order that the question as to which of the defendants
is liable, and to what extent, may be determined as between all parties.
Rule - [8.
One person may sue or defend on behalf of all in same interest.
(1)
Where there are numerous persons having the
same interest in one suit,-
(a)
one or more of such persons may, with the
permission of the Court, sue or be sued, or may defend such suit, on behalf of,
or for the benefit of, all persons so interested;
(b)
the Court may direct that one or more of such
persons may sue or be sued, or may defend such suit, on behalf of, or for the
benefit of, all persons so interested.
(2)
The Court shall, in every case where a
permission or direction is given under sub-rule (1), at the plaintiff's
expense, give notice of the institution of the suit to all persons so
interested, either by personal service, or, where, by reason of the number of
persons or any other cause, such service is not reasonably practicable, by
public advertisement, as the Court in each case may direct.
(3)
Any person on whose behalf, or for whose
benefit, a suit is instituted, or defended, under sub-rule (1), may apply to
the Court to be made a party to such suit.
(4)
No part of the claim in any such suit shall
be abandoned under sub-rule (1), and no such suit shall be withdrawn under
sub-rule (3), of rule 1 of Order XXIII, and no agreement, compromise or
satisfaction shall be recorded in any such suit under rule 3 of that Order,
unless the Court has given, at the plaintiff's expense, notice to all persons
so interested in the manner specified in sub-rule (2).
(5)
Where any person suing or defending in any
such suit does not proceed with due diligence in the suit or defence, the Court
may substitute in his place any other person having the same interest in the
suit.
(6)
A decree passed in a suit under this rule
shall be binding on all persons on whose behalf, or for whose benefit, the suit
is instituted, or defended, as the case may be.
Explanation. For the purpose
of determining whether the persons who sue or are sued, or defend, have the
same interest in one suit, it is not necessary to establish that such persons
have the same cause of action as the persons on whose behalf, or for whose
benefit, they sue or are sued, or defend the suit, as the case may be.]
Rule - [8A.
Power of Court to permit a person or body of persons to present opinion or to
take part in the proceedings.
While trying a suit, the
Court may, if satisfied that a person or body of persons is interested in any
question of law which is directly and substantially in issue in the suit and
that it is necessary in the public interest to allow that person or body of
persons to present his or its opinion on that question of law, permit that
person or body of persons to present such opinion and to take such part in the
proceedings of the suit as the Court may specify.]
Rule - 9. Misjoinder and non-joinder.
No suit shall be defeated by
reason of the misjoinder or non-joinder of parties, and the Court may in every
suit deal with the matter in controversy so far as regards the rights and
interests of the parties actually before it:
[Provided
that nothing in this rule shall apply to non-joinder of a necessary party.]
Rule - 10. Suit in name of wrong plaintiff.
(1)
Where a suit has been instituted in the name
of the wrong person as plaintiff or where it is doubtful whether it has been
instituted in the name of the right plaintiff, the Court may at any stage of
the suit, if satisfied that the suit has been instituted through a bona fide
mistake, and that it is necessary for the determination of the real matter in
dispute so to do, order any other person to be substituted or added as plaintiff
upon such terms as the Court thinks just.
(2)
Court may strike out or add parties.-The
Court may at any stage of the proceedings, either upon or without the
application of either party, and on such terms as may appear to the Court to be
just, order that the name of any party improperly joined, whether as plaintiff
or defendant, be struck out, and that the name of any person who ought to have
been joined, whether as plaintiff or defendant, or whose presence before the
Court may be necessary in order to enable the Court effectually and completely
to adjudicate upon and settle all the questions involved in the suit, be added.
(3)
No person shall be added as a plaintiff suing
without a next friend or as the next friend of a plaintiff under any disability
without his consent.
(4)
Where defendant added, plaint to be amended.-Where
a defendant is added, the plaint shall, unless the Court otherwise directs, be
amended in such manner as may be necessary, and amended copies of the summons
and of the plaint shall be served on the new defendant and, if the Court thinks
fit, on the original defendant
(5)
Subject to the provisions of the [Indian
Limitation Act, 1877 (XV of 1877)], section 22, the proceedings as against any
person added as defendant shall be deemed to have begun only on the service of
the summons.
Rule - [10A.
Power of Court to request any pleader to address it.
The Court may, in its
discretion, request any pleader to address it as to any interest which is
likely to be affected by its decision on any matter in issue in any suit or
proceeding, if the party having the interest which is likely to be so affected
is not represented by any pleader.]
Rule - 11. Conduct of suit.
The Court may give the
conduct of [a
suit] to such persons as it deems proper.
Rule - 12. Appearance of one of several
plaintiffs or defendants for others.
(1)
Where there are more plaintiffs than one, any
one or more of them may be authorized by any other of them to appear, plead or
act for such other in any proceeding; and in like manner, where there are more
defendants than one, any one or more of them may be authorized by any other of
them to appear, plead or act for such other in any proceeding.
(2)
The authority shall be in writing signed by
the party giving it and shall be filed in Court.
Rule - 13. Objections as to non-joinder or
misjoinder.
All objections on the ground
of non-joinder or misjoinder of parties shall be taken at the earliest possible
opportunity and, in all cases where issues are settled, at or before such
settlement, unless the ground of objection has subsequently arisen, and any
such objection not so taken shall be deemed to have been waived.
ORDER II FRAME OF SUIT
Rule - 1. Frame of suit.
Every suit shall as far as
practicable be framed so as to afford ground for final decision upon the
subjects in dispute and to prevent further litigation concerning them.
Rule - 2. Suit to include the whole claim.
(1)
Every suit shall include the whole of the
claim which the plaintiff is entitled to make in respect of the cause of
action; but a plaintiff may relinquish and portion of his claim in order to
bring the suit within the jurisdiction of any Court.
(2)
Relinquishment of part of claim.-Where a
plaintiff omits to sue in respect of, or intentionally relinquishes, any
portion of his claim, he shall not afterwards sue in respect of the portion so
omitted or relinquished.
(3)
Omission to sue for one of several reliefs.-A
person entitled to more than one relief in respect of the same cause of action
may sue for all or any of such reliefs; but if he omits, except with the leave
of the Court, to sue for all such reliefs, he shall not afterwards sue for any
relief so omitted.
Explanation. For the
purposes of this rule an obligation and a collateral security for its
performance and successive claims arising under the same obligation shall be
deemed respectively to constitute but one cause of action.
Illustration
A lets a house to B at a
yearly of rent Rs. 1,200. The rent for the whole of the years 1905, 1906 and
1907 is due and unpaid.
A sues B in 1908 only for
the rent due for 1906. A shall not afterwards sue B for the rent due for 1905
or 1907.
Rule - 3. Joinder of causes of action.
(1)
Save as otherwise provided, a plaintiff may
unite in the same suit several causes of action against the same defendant, or the
same defendants jointly; and any plaintiffs having causes of action in which
they are jointly interested against the same defendant or the same defendants
jointly may unite such causes of action in the same suit.
(2)
Where causes of action are united, the
jurisdiction of the Court as regards the suit shall depend on the amount or
value of the aggregate subject-matters at the date of instituting the suit.
Rule - 4. Only certain claims to be joined
for recovery of immovable property.
No cause of action shall,
unless with the leave of the Court, be joined with a suit for the recovery of
immovable property, except-
(a)
claims for mesne profits or arrears of rent
in respect of the property claimed or any part thereof;
(b)
claims for damages for breach of any contract
under which the property or any part thereof is held; and
(c)
claims in which the relief sought is based on
the same cause of action:
Provided that nothing in
this rule shall be deemed to prevent any party in a suit for foreclosure or
redemption from asking to be put into possession of the mortgaged property.
Rule - 5. Claims by or against executor,
administrator or heir.
No claim by or against an
executor, administrator or heir, as such, shall be joined with claims by or
against him personally, unless the last mentioned claims are alleged to arise
with reference to the estate in respect of which the plaintiff or defendant
sues or is sued as executor, administrator or heir, or are such as he was
entitled to, or liable for, jointly with the deceased person whom he
represents.
Rule - [6.
Power of Court to order separate trials.
Where it appears to the
Court that the joinder of causes of action in one suit may embarrass or delay
the trial or is otherwise inconvenient, the Court may order separate trials or
make such other order as may be expedient in the interests of justice.]
Rule - 7. Objections as to misjoinder.
All objections on the ground
of misjoinder of causes of action shall be taken at the earliest possible
opportunity and, in all cases where issues are settled, at or before such
settlement, unless the ground of objection has subsequently arisen, and any
such objection not so taken shall be deemed to have been waived.
STATE
AMENDMENT
Uttar Pradesh.
Amendment of the First
Schedule Order II.- In the First Schedule to the principal Act
(hereinafter in this Chapter referred to as the First Schedule), in Order II,
in rule 2 -
(a)
the existing explanation shall be numbered as
Explanation I, and after Explanation I, as so numbered the following explanation
II, shall be inserted, namely:-
“Explanation II- For the
purpose of this rule a claim for ejectment of the defendant from immovable
property let out to him anda claim for money due from him on account of rent or
compensation for use and occupation of that property, shall be deemed to be
claimsin respect of distinct causes of action.”;
(b)
for the illustration,
the following illustration
shall be substituted, namely:-
“Illustration- A
lets immovable property to B at a yearly rent. The rent for the whole of the
years 1905, 1906 and 1907 is due and unpaid, and the tenancy is determined
before A sues Bin 1908, only for the rent due for 1906. A may afterwards sue B
for ejectment but not for the rent due for 1905 or 1907.”
[Vide Uttar Pradesh Act 57
of 1976, s. 4]
ORDER III RECOGNIZED AGENTS AND PLEADERS
Rule - 1. Appearances, etc., may be in person, by recognized agent or by
pleader.
Any appearance, application
or act in or to any Court, required or authorized by law to be made or done by
a party in such Court, may, except where otherwise expressly provided by any
law for the time being in force, be made or done by the party in person, or by
his recognized agent, or by a pleader [appearing,
applying or acting, as the case may be,] on his behalf :
Provided that any such
appearance shall, if the Court so directs, be made by the party in person.
Rule - 2. Recognised agents.
The recognised agents of
parties by whom such appearances, applications and acts may be made or done are-
(a)
persons holding powers-of-attorney,
authorising them to make and do such appearances, applications and acts on
behalf of such parties;
(b)
persons carrying on trade or business for and
in the names of parties not resident within the local limits of the
jurisdiction of the Court within which limits the appearance, application or
act is made or done, in matters connected with such trade or business only,
where no other agent is expressly authorised to make and do such appearances,
applications and acts.
Rule - 3. Service of process on recognised
agent.
(1)
Processes served on the recognised agent of a
party shall be as effectual as if the same had been served on the party in person,
unless the Court otherwise directs.
(2)
The provisions for the service of process on
a party to a suit shall apply to the service of process on his recognised
agent.
Rule - [4.
Appointment of pleader.
(1)
No pleader shall act for any person in any
Court, unless he has been appointed for the purpose by such person by a
document in writing signed by such person or by his recognised agent or by some
other person duly authorised by or under a power-of-attorney to make such
appointment.
(2)
Every such appointment shall be [filed
in Court and shall, for the purposes of sub-rule (1), be] deemed to be in force
until determined with the leave of the Court by a writing signed by the client
or the pleader, as the case may be, and filed in Court, or until the client or
the pleader dies, or until all proceedings in the suit are ended so far as
regards the client.
[Explanation.
For the purposes of this sub-rule, the following shall be deemed to be
proceedings in the suit,-
(a)
an application for the review of decree or
order in the suit,
(b)
an application under section 144 or under
section 152 of this Code, in relation to any decree or order made in the suit,
(c)
an appeal from any decree or order in the
suit, and
(d)
any application or act for the purpose of
obtaining copies of documents or return of documents produced or filed in the
suit or of obtaining refund of moneys paid into the Court in connection with
the suit.]
[(3)
Nothing in sub-rule (2) shall be construed-
(a)
as extending, as between the pleader and his
client, the duration for which the pleader is engaged, or
(b)
as authorising service on the pleader of any
notice or document issued by any Court other than the Court for which the
pleader was engaged, except where such service was expressly agreed to by the
client in the document referred to in sub-rule (1).]
(4) The High Court may, by general order, direct
that, where the person by whom a pleader is appointed is unable to write his
name, his mark upon the document appointing the pleader shall be attested by
such person and in such manner as may be specified by the order.
(5) No pleader who has been engaged for the
purpose of pleading only shall plead on behalf of any party, unless he has
filed in court a memorandum of appearance signed by himself and stating-
(a)
the names of the parties to the suit,
(b)
the name of the party for whom he appears,
and
(c)
the name of the person by whom he is
authorised to appear:
Provided that nothing in
this sub-rule shall apply to any pleader engaged to plead on behalf of any
party by any other pleader who has been duly appointed to act in Court on
behalf of such party.]
Rule - 5. Service of process on pleader.
[Any
process served on the pleader who has been duly appointed to act in Court for
any party] or left at the office or ordinary residence of such pleader, and
whether the same is for the personal appearance of the party or not, shall be
presumed to be duly communicated and made known to the party whom the pleader
represents, and, unless the Court otherwise directs, shall be as effectual for
all purposes as if the same had been given to or served on the party in person.
Rule - 6. Agent to accept service.
(1)
Besides the recognised agents described in
rule 2 any person residing within the jurisdiction of the Court may be
appointed an agent to accept service of process.
(2)
Appointment to be in writing and to be filed
in Court.-Such appointment may be special or general and shall be made by an
instrument in writing signed by the principal, and such instrument or, if the
appointment is general, a certified copy thereof shall be filed in Court.
[(3)
The Court may, at any stage of the suit, order any party to the suit not having
a recognised agent residing within the jurisdiction of the Court, or a pleader
who has been duly appointed to act in the Court on his behalf, to appoint,
within a specified time, an agent residing within the jurisdiction of the Court
to accept service of the process on his behalf.]
ORDER IV INSTITUTION OF SUITS
Rule - 1. Suit to be commenced by plaint.
(1) Every suit shall be instituted by presenting [plaint
in duplicate to the Court] or such officer as it appoints in this behalf.
(2) Every plaint shall comply with the rules
contained in Orders VI and VII, so far as they are applicable.
[(3)
The plaint shall not be deemed to be duly instituted unless it complies with
the requirements specified in sub-rules (1) and (2)].
Rule - 2. Register of suits.
The Court shall cause the
particulars of every suit to be entered in a book to be kept for the purpose
and called the register of civil suits. Such entries shall be numbered in every
year according to the order in which the plaints are admitted.
STATE
AMENDMENT
Uttar Pradesh.
Insertion of Order IV-A.-In
the First Schedule, after Order IV, the following Order shall be inserted,
namely :-
“ORDER IV-A CONSOLIDATION OF
CASES
Rule - 1. Consolidation of
suits and proceedings
When two or more suits or
proceedings are pending in the same court, and the court is of opinion that it
is expedient in the interest of justice, it may by order direct their joint
trial, whereupon all such suits and proceedings may be decided upon the
evidence in all or any such suits or proceedings.”
[Vide Uttar Pradesh Act 57
of 1976, s. 5]
Amendment of Order VI.- In
the First Schedule, in Order VI, in rule 15, in sub-rule (1), for the words “at
the foot”, the following words shall be substituted, namely :-
“on oath administered by an
officer empowered under section139 of the Code,”.
[Vide Uttar Pradesh Act 57
of 1976, s. 6]
ORDER V ISSUE AND SERVICE OF SUMMONS ISSUE OF SUMMONS.
Rule - 1. Summons.
[(1)
When a suit has been duly instituted, a summons may be issued to the defendant
to appear and answer the claim and to file the written statement of his
defence, if any, within thirty days from the date of service of summons on that
defendant:
Provided that no such
summons shall be issued when a defendant has appeared at the presentation of
plaint and admitted the plaintiff’s claim:
[Provided further that where
the defendant fails to file the written statement within the said period of
thirty days, he shall be allowed to file the written statement on such other
day, as may be specified by the Court, for reasons to be recorded in writing
and on payment of such costs as the Court deems fit, but which shall not be
later than one hundred twenty days from the date of service of summons and on
expiry of one hundred twenty days from the date of service of summons, the
defendant shall forfeit the right to file the written statement and the Court
shall not allow the written statement to be taken on record.]
(2) A defendant to whom a summons has been issued
under sub-rule (1) may appear-
(a)
in person, or
(b)
by a pleader duly instructed and able to
answer all material questions relating to the suit, or
(c)
by a pleader accompanied by some person able
to answer all such questions.
(3) Every such summons shall be signed by the
Judge or such officer as he appoints, and shall be sealed with the seal of the
Court.
STATE
AMENDMENT
Jammu and Kashmir and Ladakh
(UTs).-
In Order V, in Rule 1, for
the second proviso, substitute the following proviso, namely;-
Provided further that where
the defendant fails to file the written statement within the said period of
thirty days, he shall be allowed to file the written statement on such other
day, as may be specified by the court, for reasons to be recorded in writing
and on payment of such costs as the court deems fit, but which shall not be
later than one hundred twenty days from the date of service of summons and on
expiry of one hundred twenty days from the date of service of summons, the
defendant shall forfeit the right to file the written statement and the court
shall not allow the written statement to be taken on record.
[Vide the Jammu and Kashmir
Reorganisation (Adaptation of Central Laws) Order, 2020, notification No. S.O.
1123(E) dated (18-3-2020) and vide Union Territory of Ladakh Reorganisation
(Adaptation of Central Laws) Order, 2020, Notification No. S.O. 3774(E), dated
(23-10-2020)].
Rule - [2.
Copy of plaint annexed to summons.
Every summon shall be
accompanied by a copy of the plaint.]
Rule - 3. Court may order defendant or
plaintiff to appear in person.
(1)
Where the court sees reason to require the
personal appearance of the defendant, the summons shall order him to appear in
person in Court on the day therein specified.
(2)
Where the Court sees reason to require the
personal appearance of the plaintiff on the same day, it shall make an order
for such appearance.
Rule - 4. No party to be ordered to appear in
person unless resident within certain limits.
No party shall be ordered to
appear in person unless he resides-
(a)
within the local limits of the Court’s
ordinary original jurisdiction, or
(b)
without such limits but at place less than
fifty or (where there is railway or steamer communication or other established
public conveyance for five-sixths of the distance between the place where he
resides and the place where the Court is situate) less than two hundred miles
distance from the court-house.
Rule - 5. Summons to be either to settle
issues or for final disposal.
The Court shall determine,
at the time of issuing the summons, whether it shall be for the settlement of
issues only, or for the final disposal of the suit; and the summons shall contain
a direction accordingly:
Provided that, in every suit
heard by a Court of Small Causes, the summons shall be for the final disposal
of the suit.
Rule - 6. Fixing day for appearance of
defendant.
The day [under
sub-rule (1) of rule 1] shall be fixed with reference to the current business
of the Court, the place of residence of the defendant and the time necessary
for the service of the summons; and the day shall be so fixed as to allow the
defendant sufficient time to enable him to appear and answer on such day.
Rule - 7. Summons to order defendant to
produce documents relied on by him.
The summons to appear and
answer shall order the defendant to produce [all
documents or copies thereof specified in rule lA of Order VIII] in his
possession or power upon which he intends to rely in support of his case.
Rule - 8. On issue of summons for final
disposal, defendant to be directed to produce his witnesses.
Where the summons is for the
final disposal of the suit, it shall also direct the defendant to produce, on
the day fixed for his appearance, all witnesses upon whose evidence he intends
to rely in support of his case.
Service
of summons
Rule - [9.
Delivery of summons by Court.
(1)
Where the defendant resides within the
jurisdiction of the Court in which the suit is instituted, or has an agent
resident within that jurisdiction who is empowered to accept the service of the
summons, the summons shall, unless the Court otherwise directs, be delivered or
sent either to the proper officer to be served by him or one of his
subordinates or to such courier services as are approved by the Court.
(2)
The proper officer may be an officer of a
Court other than that in which the suit is instituted, and, where he is such an
officer, the summons may be sent to him in such manner as the Court may direct.
(3)
The services of summons may be made by
delivering or transmitting a copy thereof by registered post acknowledgment
due, addressed to the defendant or his agent empowered to accept the service or
by speed post or by such courier services as are approved by the High Court or
by the Court referred to in sub-rule (1) or by any other means of transmission
of documents (including fax message or electronic mail service) provided by the
rules made by the High Court:
Provided that the service of
summons under this sub-rule shall be made at the expenses of the plaintiff.
(4)
Notwithstanding anything contained in
sub-rule (1), where a defendant resides outside the jurisdiction of the Court
in which the suit is instituted, and the Court directs that the service of
summons on that defendant may be made by such mode of service of summons as is
referred to in sub-rule (3) (except by registered post acknowledgment due), the
provisions of rule 21 shall not apply.
(5)
When an acknowledgment or any other receipt
purporting to be signed by the defendant or his agent is received by the Court
or postal article containing the summons is received back by the Court with an
endorsement purporting to have been made by a postal employee or by any person
authorised by the courier service to the effect that the defendant or his agent
had refused to take delivery of the postal article containing the summons or
had refused to accept the summons by any other means specified in sub-rule (3)
when tendered or transmitted to him, the Court issuing the summons shall
declare that the summons had been duly served on the defendant:
Provided that where the
summons was properly addressed, pre-paid and duly sent by registered post
acknowledgment due, the declaration referred to in this sub-rule shall be made
notwithstanding the fact that the acknowledgment having been lost or mislaid,
or for any other reason, has not been received by the Court within thirty days
from the date of issue of summons.
(6)
The High Court or the District Judge, as the
case may be, shall prepare a panel of courier agencies for the purposes of
sub-rule (1).
Rule - 9A. Summons given to the plaintiff for
service.
(a)
The Court may, in addition to the service of
summons under rule 9, on the application of the plaintiff for the issue of a
summons for the appearance of the defendant, permit such plaintiff to effect
service of such summons on such defendant and shall, in such a case, deliver
the summons to such plaintiff for service.
(b)
The service of such summons shall be effected
by or on behalf of such plaintiff by delivering or tendering to the defendant
personally a copy thereof signed by the Judge or such officer of the Court as
he may appoint in this behalf and sealed with the seal of the Court or by such
mode of service as is referred to in sub-rule (3) of rule 9.
(c)
The provisions of rules 16 and 18 shall apply
to a summons personally served under this rule as if the person effecting
service were a serving officer.
(d)
If such summons, when tendered, is refused or
if the person served refuses to sign an acknowledgment of service or for any
reason such summons cannot be served personally, the Court shall, on the
application of the party, re-issue such summons to be served by the Court in
the same manner as a summons to a defendant.]
Rule - 10. Mode of service.
Service of the summons shall
be made by delivering or tendering a copy thereof signed by the Judge or such
officer as he appoints in this behalf, and sealed with the seal of the Court.
Rule - 11. Service on several defendants.
Save as otherwise
prescribed, where there are more defendants than one, service of the summons
shall be made on each defendant.
Rule - 12. Service to be on defendant in
person when practicable, or on his agent.
Wherever it is practicable,
service shall be made on the defendant in person, unless he has an agent
empowered to accept service, in which case service on such agent shall be
sufficient.
Rule - 13. Service on agent by whom defendant
carries on business.
(1)
In a suit relating to any business or work
against a person who does not reside within the local limits of the
jurisdiction of the Court from which the summons is issued, service on any
manager or agent, who, at the time of service, personally carries on such
business or work for such person within such limits, shall be deemed good
service.
(2)
For the purpose of this rule the master of a
ship shall be deemed to be the agent of the owner or charterer.
Rule - 14. Service on agent in charge in
suits for immovable property.
Where in a suit to obtain
relief respecting, or compensation for wrong to, immovable property, service
cannot be made on the defendant in person, and the defendant has no agent
empowered to accept the service, it may be made on any agent of the defendant
in charge of the property.
Rule - [15.
Where service may be on an adult member of defendant's family.
Where in any suit the
defendant is absent from his residence at the time when the service of summons
is sought to be effected on his at his residence and there is no likelihood of
his being found at the residence within a reasonable time and he has no agent
empowered to accept service of the summons on his behalf, service may be made
on any adult member of the family, whether male or female, who is residing with
him.
Explanation. A servant is
not a member of the family within the meaning of this rule.]
Rule - 16. Person served to sign
acknowledgment.
Where the serving officer
delivers or tenders a copy of the summons to the defendant personally, or to an
agent or other person on his behalf, he shall require the signature of the
person to whom the copy is so delivered or tendered to an acknowledgment of
service endorsed on the original summons.
Rule - 17. Procedure when defendant refuses
to accept service, or cannot be found.
Where the defendant or his
agent or such other person as aforesaid refuses to sign the acknowledgment, or
where the serving officer, after using all due and reasonable diligence, cannot
find the defendant, [who
is absent from his residence at the time when service is sought to be effected
on him at his residence and there is no likelihood of his being found at the
residence within a reasonable time] and there is no agent empowered to accept
service of the summons on his behalf, nor any other person on whom service can
be made, the serving officer shall affix a copy of the summons on the outer
door or some other conspicuous part of the house in which the defendant
ordinarily resides or carries on business or personally works for gain, and
shall then return the original to the Court from which it was issued, with a
report endorsed thereon or annexed thereto stating that he has so affixed the
copy, the circumstances under which he did so, and the name and address of the
person (if any) by whom the house was identified and in whose presence the copy
was affixed.
Rule - 18. Endorsement of time and manner of
service.
The serving officer shall,
in all cases in which the summons has been served under rule 16, endorse or
annex, or cause to be endorsed or annexed, on or to the original summons, a
return stating the time when and the manner in which the summons was served,
and the name and address of the person (if any) identifying the person served
and witnessing the delivery or tender of the summons.
Rule - 19. Examination of serving officer.
Where a summons is returned
under rule 17, the Court shall, if the return under that rule has not been
verified by the affidavit of the serving officer, and may, if it has been so
verified, examine the serving officer on oath, or cause him to be so examined
by another Court, touching his proceedings, and may make such further enquiry
in the matter as it thinks fit; and shall either declare that the summons has
been duly served or order such service as it thinks fit.
Rule - 19A. [Simultaneous
issue of summons for service by post in addition to personal service.]
[* * *]
Rule - 20. Substituted service.
(1)
Where the Court is satisfied that there is
reason to believe that the defendant is keeping out of the way for the purpose
of avoiding service, or that for any other reason the summons cannot be served
in the ordinary way, the Court shall order the summons to be served by affixing
a copy thereof in some conspicuous place in the Court-house, and also upon some
conspicuous part of the house (if any) in which the defendant is known to have
last resided or carried on business or personally worked for gain, or in such
other manner as the Court thinks fit.
[(1A)
Where the Court acting under sub-rule (1) orders service by an advertisement in
a newspaper, the newspaper shall be a daily newspaper circulating in the
locality in which the defendant is last known to have actually and voluntarily
resided, carried on business or personally worked for gain.]
(2)
Effect of substituted service. Service
substituted by order of the Court shall be as effectual as if it had been made
on the defendant personally.
(3)
Where service substituted, time for
appearance to be fixed. Where service is substituted by order of the Court, the
Court shall fix such time for the appearance of the defendant as the case may
require.
Rule – [[20A.
Service of summons by post.]]
[* * *]
Rule - 21. Service of summons where defendant
resides within jurisdiction of another Court.
A summons may be sent by the
Court by which it is issued, whether within or without the State, either by one
of its officers [or
by post or by such courier service as may be approved by the High Court, by fax
message or by Electronic Mail service or by any other means as may be provided
by the rules made by the High Court] to any Court (not being the High Court)
having jurisdiction in the place where the defendant resides.
Rule - 22. Service within presidency towns of
summons issued by Courts outside.
Where a summons issued by
any Court established beyond the limits of the towns of Calcutta, Madras [and
Bombay] is to be served within any such limits, it shall be sent to the Court
of Small Causes within whose jurisdiction it is to be served.
Rule - 23. Duty of Court to which summons is
sent.
The Court to which a summons
is sent under rule 21 or rule 22 shall, upon receipt thereof, proceed as if it
had been issued by such Court and shall then return the summons to the Court of
issue, together with the record (if any) of its proceedings with regard
thereto.
Rule - 24. Service on defendant in prison.
Where the defendant is
confined in a prison, the summons shall be delivered or sent [or
by post or by such courier service as may be approved by the High Court, by fax
message or by Electronic Mail service or by any other means as may be provided
by the rules made by the High Court] to the officer in charge of the prison for
service on the defendant.
Rule - 25. Service where defendant resides
out of India and has no agent.
Where the defendant resides
out of [India]
and has no agent in [India]
empowered to accept service, the summons shall be addressed to the defendant at
the place where he is residing and sent to him [or
by post or by such courier service as may be approved by the High Court, by fax
message or by Electronic Mail service or by any other means as may be provided
by the rules made by the High Court], if there is postal communication between
such place and the place where the Court is situate:
[Provided
that where any such defendant [resides
in Bangladesh or Pakistan], the summons, together with a copy thereof, may be
sent for service on the defendant, to any Court in that country (not being the
High Court) having jurisdiction in the place where the defendant resides:
Provided further that where
any such defendant is a public officer [in
Bangladesh or Pakistan (not belonging to the Bangladesh or, as the case may be,
Pakistan military, naval or air forces)] or is a servant of a railway company
or local authority in that country, the summons, together with a copy thereof,
may be sent for service on the defendant, to such officer or authority in that
country as the Central Government may by notification in the Official Gazette,
specify in this behalf.]
Rule - [26.
Service in foreign territory through Political Agent or Court.
Where-
(a)
in the exercise of any foreign jurisdiction
vested in the Central Government, a Political Agent has been appointed, or a
Court has been established or continued, with power to serve a summons, issued
by a Court under this Code, in any foreign territory in which the defendant
actually and voluntarily resides, carries on business or personally works for
gain, or
(b)
the Central Government has, by notification
in the Official Gazette, declared in respect of any Court situate in any such
territory and not established or continued in the exercise of any such
jurisdiction as aforesaid, that service by such Court of any summons issued by
a Court under this Code shall be deemed to be valid service, the summons may be
sent to such Political Agent or Court, by post, or otherwise, or if so directed
by the Central Government, through the Ministry of that Government dealing with
foreign affairs, or in such other manner as may be specified by the Central
Government for the purpose of being served upon the defendant; and, if the
Political Agent or Court returns the summons with an endorsement purporting to
have been made by such Political Agent or by the Judge or other officer of the
Court to the effect that the summons has been served on the defendant in the
manner hereinbefore directed, such endorsement shall be deemed to be evidence
of service.
Rule - 26A. Summonses to be sent to officers
to foreign countries.
Where the Central Government
has, by notification in the Official Gazette, declared in respect of any
foreign territory that summonses to be served on defendants actually and
voluntarily residing or carrying on business or personally working for gain in
that foreign territory may be sent to an officer of the Government of the
foreign territory specified by the Central Government, the summonses may be
sent to such officer, through the Ministry of the Government of India dealing
with foreign affairs or in such other manner as may be specified by the Central
Government; and if such officer returns any such summons with an endorsement
purporting to have been made by him that the summons has been served on the
defendant, such endorsement shall be deemed to be evidence of service].
Rule - 27. Service on civil public officer or
on servant of railway company or local authority.
Where the defendant is a
public officer (not belonging to the [the
Indians] military [naval
or air] forces ***),
or is the servant of a railway company or local authority, the Court may, if it
appears to it that the summons may be most conveniently so served, send it for
service on the defendant to the head of the office in which he is employed,
together with a copy to be retained by the defendant.
Rule - 28. Service on soldiers, sailors or
airmen.
Where the defendant is a
soldier, [sailor]
[or
airman], the Court shall send the summons for service to his commanding officer
together with a copy to be retained by the defendant.
Rule - 29. Duty of person to whom summons is
delivered or sent for service.
(1)
Where a summons is delivered or sent to any
person for service under rule 24, rule 27 or rule 28, such person shall be
bound to serve it if possible, and to return it under his signature, with the
written acknowledgment of the defendant, and such signature shall be deemed to
be evidence of service.
(2)
Where from any cause service is impossible,
the summons shall be returned to the Court with a full statement of such cause
and of the steps taken to procure service, and such statement shall be deemed
to be evidence of non-service.
Rule - 30. Substitution of letter for
summons.
(1)
The Court may, notwithstanding anything
hereinbefore contained, substitute for a summons a letter signed by the Judge
or such officer as he may appoint in this behalf, where the defendant is, in
the opinion of the Court, of a rank entitling him to such mark of
consideration.
(2)
A letter substituted under sub-rule (1) shall
contain all the particulars required to be stated in a summons, and, subject to
the provisions of sub-rule (3), shall be treated in all respects as a summons.
(3)
A letter so substituted may be sent to the
defendant by post or by a special messenger selected by the Court, or in any
other manner which the Court thinks fit; and, where the defendant has an agent
empowered to accept service, the letter may be delivered or sent to such agent.
State Amendment
Sikkim
Amendment
of Order V :-
In the First Schedule to the
principal Act (hereinafter referred to as the First Schedule), in Order V,-
(i)
in rule 1, for sub-rule (1) [as substituted
by clause (i) of section 15 of the Code of Civil Procedure (Amendment) Act,
1999], the following sub-rule shall be substituted, namely:-
46
of 1999
“(1)
When a suit has been duly instituted, a
summons may be issued to the defendant to appear and answer the claim and to
file the written statement of his defence, if any, within thirty days from the
date of service of summons on that defendant:
Provided that no such
summons shall be issued when a defendant has appeared at the presentation of
plaint and admitted the plaintiffs claim:
Provided further that where
the defendant fails to file the written statement within the said period of
thirty days, he shall be allowed to file the same on such other day as may be specified
by the Court, for reasons to be recorded in writing, but which shall not be
later than ninety days from the date of service of summons.”
(ii)
for rule 9 [ as substituted by clause (v) of
section 15 of the Code of Civil Procedure (Amendment) Act, 1999] the following
rules shall be substituted, namely:-
46
of 1999
Delivery
of summons by Court
“9.
(1)
Where the defendant resides within the
jurisdiction of the Court in which the suit is instituted, or has an agent
resident within that jurisdiction who is empowered to accept the service of the
summons, the summons shall, unless the Court otherwise directs, be delivered or
sent either to the proper officer to be served by him or one of his
subordinates or to such courier services as are approved by the Court.
(2)
the proper officer may be an officer of a
Court other than that in which the suit is instituted, and where he is such an
officer, the summons may be sent to him in such manner as the Court may direct.
(3)
The services of summons may be made by delivering
or transmitting a copy thereof by registered post acknowledgment due, addressed
to the defendant or his agent empowered to accept the service or by speed post
or by such courier services as are approved by the High Court or by the Court
referred to in sub-rule (1) or by any other means of transmission of documents
(including fax message or electronic mail service) provided by the rules made
by the High court:
Provided that the service of
summons under this sub-rule shall be made at the expenses of the plaintiff.
(4)
Notwithstanding anything contained in
sub-rule (1), where a defendant resides outside the jurisdiction of the Court
in which the suit is instituted, and the Court directs that the service of
summons on that defendant may be made by such mode of service of summons as is
referred to in sub-rule (3) (except by registered post acknowledgment due), the
provisions of rule 21 shall not apply.
(5)
When an acknowledgment or any other receipt
purporting to be signed by the defendant or his agent is received by the Court
or postal article containing the summons is received back by the Court with an
endorsement purporting to have been made by a postal employee or by any person
authorized by the courier service to the effect that the defendant or his agent
had refused to take delivery of the postal article containing the summons or
had refused to accept the summons by any other means specified in sub-rule (3)
when tendered or transmitted to him, the Court issuing the summons shall
declare that the summons had been duly served on the defendant.
Provided that where the
summons was properly addressed, pre-paid and duly sent by registered post
acknowledgment due, the declaration referred to in this sub-rule shall be made
notwithstanding the fact that the acknowledgment having been lost or mislaid,
or for any other reason, has not been received by the Court within thirty days
from the date of issue of summons.
(6)
The High Court or the District Judge, as the
case may be, shall prepare a panel of courier agencies for the purposes of
sub-rule (1).
Summons given to the
plaintiff for service.
9A (1) The Court may, in addition to the service
of summons under rule 9, on the application of the plaintiff for the issue of a
summons for the appearance of the defendant, permit such plaintiff to effect
service of such summons on such defendant and shall, in such a case, deliver
the summons to such plaintiff for service.
(2) The service of such
summons shall be effected by or on behalf of such plaintiff by delivering or
tendering to the defendant personally a copy thereof signed by the Judge or such
officer of the Court as he may appoint in this behalf and sealed with the seal
of the Court or by such mode of service as is referred to in sub-rule (3) of
rule 9.
(3) The provisions of rules
16 and 18 shall apply to a summons personally served under this rule as if the
person effecting service were a serving officer.
(4) If such summons, when
tendered, is refused or if the person served refuses to sign an acknowledgment
of service or for any reason such summons cannot be served personally, the
Court shall, on the application of the party, re-issue such summons to be
served by the Court in the same manner as a summons to a defendant.”
[Vide Sikkim Act 22 of 2002]
ORDER VI PLEADINGS GENERALLY
Rule - 1. Pleading.
“Pleading” shall mean plaint
or written statement.
Rule - [2.
Pleading to state material facts and not evidence.
(1)
Every pleading shall contain, and contain
only, a statement in a concise form of the material facts on which the party
pleading relies for his claim or defence, as the case may be, but not the
evidence by which they are to be proved.
(2)
Every pleading shall, when necessary, be
divided into paragraphs, numbered consecutively, each allegation being, so far
as is convenient, contained in a separate paragraph.
(3)
Dates, sums and numbers shall be expressed in
a pleading in figures as well as in words.]
Rule - 3. Forms of pleading.
The forms in Appendix A when
applicable, and where they are not applicable forms of the like character, as
nearly as may be, shall be used for all pleadings.
Rule - [3A.
Forms of pleading in Commercial Courts.
In a commercial dispute,
where forms of pleadings have been prescribed under the High Court Rules or
Practice Directions made for the purposes of such commercial disputes,
pleadings shall be in such forms.]
Rule - 4. Particulars to be given where
necessary.
In all cases in which the party
pleading relies on any misrepresentation, fraud, breach of trust, wilful
default, or undue influence, and in all other cases in which particulars may be
necessary beyond such as are exemplified in the forms aforesaid, particulars
(with dates and items if necessary) shall be stated in the pleading.
STATE
Amendment
Madhya
Pradesh
Amendment Of Order Vi Of The First
Schedule :-
In Order VI of the First
Schedule to the Principal Act, after Rule 4, the following rule shall be
inserted, namely :-
“4-A.
Particulars of pleadings for agricultural land.-
In any suit or proceeding
contemplated under Rule 3-B of Order I, the parties, other than the State
Government shall plead the particulars of total agricultural land which is
owned, claimed or held by them in any right and shall further declare whether
the subject-matter of suit or proceeding is or is not covered by Madhya Pradesh
Ceiling on Agricultural Holdings Act, 1960 (No. 20 of 1960) and whether any
proceedings in relation to such subject matter are to the knowledge of the
party pending before the competent authority.”
[Vide Madhya Pradesh Act 29
of 1984]
Rule - 5. [Further
and better statement, or particulars.]
[* * *]
Rule - 6. Condition precedent.
Any condition precedent, the
performance or occurrence of which is intended to be contested, shall be
distinctly specified in his pleading by the plaintiff or defendant, as the case
may be; and, subject thereto, an averment of the performance or occurrence of
all conditions precedent necessary for the case of the plaintiff or defendant
shall be implied in his pleading.
Rule - 7. Departure.
No pleading shall, except by
way of amendment, raise any new ground of claim or contain any allegation of
fact inconsistent with the previous pleadings of the party pleading the same.
Rule - 8. Denial of contract.
Where a contract is alleged
in any pleading, a bare denial of the same by the opposite party shall be
construed only as a denial in fact of the express contract alleged or of the
matters of fact from which the same may be implied, and not as a denial of the
legality or sufficiency in law of such contract.
Rule - 9. Effect of document to be stated.
Wherever the contents of any
document are material, it shall be sufficient in any pleading to state the
effect thereof as briefly as possible, without setting out the whole or any
part thereof, unless the precise words of the document or any part thereof are
material.
Rule - 10. Malice, knowledge, etc.
Wherever it is material to
allege malice, fradulent intention, knowledge or other condition of the mind of
any person, it shall be sufficient to allege the same as a fact without setting
out the circumstances from which the same is to be inferred.
Rule - 11. Notice.
Wherever it is material to
allege notice to any person of any fact, matter or thing, it shall be
sufficient to allege such notice as a fact, unless the form or the precise
terms of such notice, or the circumstances from which such notice is to be
inferred, are material.
Rule - 12. Implied contract, or relation.
Whenever any contract or any
relation between any persons is to be implied from a series of letters or
conversations or otherwise from a number of circumstances, it shall be
sufficient to allege such contract or relation as a fact, and to refer
generally to such letters, conversations or circumstances without setting them
out in detail. And if in such case the person so pleading desires to rely in
the alternative upon more contracts or relations than one as to be implied from
such circumstances, he may state the same in the alternative.
Rule - 13. Presumptions of law.
Neither party need in any
pleading allege any matter of fact which the law presumes in his favour or as
to which the burden of proof lies upon the other side unless the same has first
been specifically denied (e.g., consideration for a bill of exchange where the
plaintiff sues only on the bill and not for the consideration as a substantive
ground of claim).
Rule - 14. Pleading to be signed.
Every pleading shall be
signed by the party and his pleader (if any): Provided that where a party
pleading is, by reason of absence or for other good cause, unable to sign the
pleading, it may be signed by any person duly authorized by him to sign the
same or to sue or defend on his behalf
Rule - [14A.
Address for service of notice.
(1)
Every pleading, when filed by a party, shall
be accompanied by a statement in the prescribed form, signed as provided in
rule 14, regarding the address of the party.
(2)
Such address may, from time to time, be
changed by lodging in Court a form duly filled up and stating the new address
of the party and accompanied by a verified petition.
(3)
The address furnished in the statement made
under sub-rule (1) shall be called the “registered address” of the party, and
shall, until duly changed as aforesaid, be deemed to be the address of the
party for the purpose of service of all processes in the suit or in any appeal
from any decree or order therein made and for the purpose of execution, and
shall hold good, subject as aforesaid, for a period of two years after the
final determination of the cause or matter.
(4)
Service of any process may be effected upon a
party at his registered address in all respects as though such party resided
thereat.
(5)
Where the registered address of a party is
discovered by the Court to be incomplete. false or fictitious, the Court may,
either on its own motion, or on the application of any party, order;
(a)
in the case where such registered address was
furnished by a plaintiff, stay of the suit, or
(b)
in the case where such registered address was
furnished by a defendant, his defence be struck out and he be placed in the
same position as if he had not put up any defence.
(6)
Where a suit is stayed or a defence is struck
out under sub-rule (5), the plaintiff or, as the case may be, the defendant
may, after furnishing his true address, apply to the Court for an order to set
aside the order of stay or, as the case may be, the order striking out the
defence.
(7)
The Court, if satisfied that the party was
prevented by any sufficient cause from filing the true address at the proper
time, shall set aside the order of stay or order striking out the defence, on
such terms as to costs or otherwise as it thinks fit and shall appoint a day
for proceeding with the suit or defence, as the case may be.
(8)
Nothing in this rule shall prevent the Court
from directing the service of a process at any other address, if, for any
reason, it thinks fit to do so.]
Rule - 15. Verification of pleadings.
(1)
Save as otherwise provided by any law for the
time being in force, every pleading shall be verified at the foot by the party
or by one of the parties pleading or by some other person proved to the
satisfaction of the Court to be acquainted with the facts of the case.
(2)
The person verifying shall specify, by
reference to the numbered paragraphs of the pleading, what he verifies of his
own knowledge and what he verifies upon information received and believed to be
true.
(3)
The verification shall be signed by the
person making it and shall state the date on which and the place at which it
was signed.
[(4)
The person verifying the pleading shall also furnish an affidavit in support of
his pleadings.
Rule - [15A.
Verification of pleadings in a commercial dispute.
(1)
Notwithstanding anything contained in Rule
15, every pleading in a commercial dispute shall be verified by an affidavit in
the manner and form prescribed in the Appendix to this Schedule.
(2)
An affidavit under sub-rule (1) above shall
be signed by the party or by one of the parties to the proceedings, or by any
other person on behalf of such party or parties who is proved to the
satisfaction of the Court to be acquainted with the facts of the case and who
is duly authorised by such party or parties.
(3)
Where a pleading is amended, the amendments
must be verified in the form and manner referred to in sub-rule (1) unless the
Court orders otherwise.
(4)
Where a pleading is not verified in the
manner provided under sub-rule (1), the party shall not be permitted to rely on
such pleading as evidence or any of the matters set out therein.
(5)
The Court may strike out a pleading which is
not verified by a Statement of Truth, namely, the affidavit set out in the
Appendix to this Schedule.]
Rule - [16.
Striking out pleadings.
The Court may at any stage
of the proceedings order to be struck out or amended any matter in any pleading-
(a)
which may be unnecessary, scandalous,
frivolous or vexatious, of
(b)
which may tend to prejudice, embarrass or
delay the fair trail of the suit, or
(c)
which is otherwise an abuse of the process of
the Court.]
Rule - [17.
Amendment of pleadings.
The Court may at any stage
of the proceedings allow either party to alter or amend his pleadings in such
manner and on such terms as may be just, and all such amendments shall be made
as may be necessary for the purpose of determining the real questions in
controversy between the parties:
Provided that no application
for amendment shall be allowed after the trial has commenced, unless the Court
comes to the conclusion that in spite of due diligence, the party could not
have raised the matter before the commencement of trial.
Rule - 18. Failure to amend after Order.
If a party who has obtained
an order for leave to amend does not amend accordingly within the time limited
for that purpose by the order, or if no time is thereby limited then within
fourteen days from the date of the order, he shall not be permitted to amend
after the expiration of such limited time as aforesaid or of such fourteen
days, as the case may be, unless the time is extended by the Court.]
STATE
AMENDMENT
Uttar Pradesh.
Amendment of Order VI of the
First Schedule.- In the First Schedule to the said Code, in
Order VI, in rule 15, in sub-rule (1), for words, “on oath administered by an
officer empowered under section 137 of the Code,”
[Vide Uttar Pradesh Act 31
of 1978, s. 4]
Sikkim
Amendment
of Order VI :-
In the First Schedule, in
Order VI, for rules 17 and 18 (as they stood immediately before their omission
by clause (iii) of section 16 of the Code of Civil Procedure (Amendment) Act,
1999] the following rules shall be substituted, namely:-
46
of 1999
Amendment
of pleadings.
“17.
The Court may at any stage of the proceedings allow either party to alter or
amend his pleadings in such manner and on such terms as may be just, and all
such amendments shall be made as may be necessary for the purpose of
determining the real questions in controversy between the parties:
Provided that no application
for amendment shall be allowed after the trial has commenced, unless the Court
comes to the conclusion that in spite of due diligence, the party could not
have raised the matter before the commencement of trial.
Failure
to amend after Order.
18. If a party who has obtained an order for leave
to amend does not amend accordingly within the time limited for that purpose by
the order, or if no time is thereby limited then within fourteen days from the
date of the order, he shall not be permitted to amend after the expiration of
such limited time as aforesaid or of such fourteen days, as the case may be,
unless the time is extended by the Court.”
[Vide Sikkim Act 22 of 2002]
ORDER VII PLAINT
Rule - 1. Particulars to be contained in plaint.
The plaint shall contain the
following particulars:-
(a)
the name of the Court in which the suit is
brought;
(b)
the name, description and place of residence
of the plaintiff;
(c)
the name, description and place of residence
of the defendant, so far as they can be ascertained;
(d)
where the plaintiff or the defendant is a
minor or a person of unsound mind, a statement to that effect;
(e)
the facts constituting the cause of action
and when it arose;
(f)
the facts showing that the Court has
jurisdiction;
(g)
the relief which the plaintiff claims;
(h)
where the plaintiff has allowed a set-off or
relinquished a portion of his claim, the amount so allowed, or relinquished; and
(i)
a statement of the value of the
subject-matter of the suit for the purposes of jurisdiction and of court-fees,
so far as the case admits.
Rule - 2. In money suits.
Where the plaintiff seeks
the recovery of money, the plaint shall state the precise amount claimed:
But where the plaintiff sues
for mesne profits, or for an amount which will be found due to him on taking
unsettled accounts between him and the defendant, [or
for movables in the possession of the defendant, or for debts of which the
value he cannot, after the exercise of reasonable diligence, estimate, the
plaint shall state approximately the amount or value sued for.]
Rule - [2A.
Where interest is sought in the suit.
(1)
Where the plaintiff seeks interest, the
plaint shall contain a statement to that effect along with the details set out
under sub-rules (2) and (3).
(2)
Where the plaintiff seeks interest, the
plaint shall state whether the plaintiff is seeking interest in relation to a
commercial transaction within the meaning of section 34 of the Code of Civil
Procedure, 1908 (5 of 1908) and, furthermore, if the plaintiff is doing so
under the terms of a contract or under an Act, in which case the Act is to be
specified in the plaint; or on some other basis and shall state the basis of
that.
(3)
Pleadings shall also state-
(a)
the rate at which interest is claimed;
(b)
the date from which it is claimed;
(c)
the date to which it is calculated;
(d)
the total amount of interest claimed to the
date of calculation; and
(e)
the daily rate at which interest accrues
after that date.]
STATE
AMENDMENT
Jammu and Kashmir and Ladakh
(UTs)?
In Order VII, after Rule,
insert the following Rule, namely:-
2A. Where interest is sought
in the suit.
(7)
Where the plaintiff seeks interests, the
plaint shall contain a statement to that effect along with the details set out
under sub-rules (2) and (3).
(8)
Where the plaintiff seeks interest, the
plaint shall state whether the plaintiff is seeking interest in relation to a
commercial transaction within the meaning of section 34 of the Code of Civil
Procedure, 1908 and, furthermore, if the plaintiff is doing so under the terms
of a contract or under an Act, in which case the Act is to be specified in the
plaint; or on some other basis and shall state the basis of that.
(9)
Pleadings shall also state:
(a)
the rate at which interest is claimed;
(b)
the date from which it is claimed;
(c)
the date to which it is calculated;
(d)
the total amount of interest claimed to the
date calculation; and
(e)
the daily rate at which interest accrues
after the date.
[Vide the Jammu and Kashmir
Reorganisation (Adaptation of Central Laws) Order, 2020, notification No. S.O.
1123(E) dated (18-3-2020) and vide Union Territory of Ladakh Reorganisation
(Adaptation of Central Laws) Order, 2020, Notification No. S.O. 3774(E), dated
(23-10-2020)].
Rule - 3. Where the subject-matter of the
suit is immovable property.
Where the subject-matter of
the suit is immovable property, the plaint shall contain a description of the
property sufficient to identify it, and, in case such property can be identified
by boundaries or numbers in a record of settlement or survey, the plaint shall
specify such boundaries or numbers.
Rule - 4. When plaintiff sues as
representative.
Where the plaintiff sues in
a representative character the plaint shall show not only that he has an actual
existing interest in the subject-matter, but that he has taken the steps (if
any) necessary to enable him to institute a suit concerning it.
Rule - 5. Defendant’s interest and liability
to be shown.
The plaint shall show that
the defendant is or claims to be interested in the subject-matter, and that he
is liable to be called upon to answer the plaintiff’s demand.
Rule - 6. Grounds of exemption from
limitation law.
Where the suit is instituted
after the expiration of the period prescribed by the law of limitation, the
plaint shall show the ground upon which exemption from such law is claimed:
[Provided
that the Court may permit the plaintiff to claim exemption from the law of
limitation on any ground not set out in the plaint, if such ground is not
inconsistent with the grounds set out in the plaint.]
Rule - 7. Relief to be specifically stated.
Every plaint shall state
specifically the relief which the plaintiff claims either simply or in the
alternative, and it shall not be necessary to ask for general or other relief
which may always be given as the Court may think just to the same extent as if
it had been asked for. And the same rule shall apply to any relief claimed by
the defendant in his written statement.
Rule - 8. Relief founded on separate grounds.
Where the plaintiff seeks
relief in respect of several distinct claims or causes of action founded upon
separate and distinct grounds, they shall be stated as far as may be separately
and distinctly.
Rule - [9.
Procedure on admitting plaint.
Where the Court orders that
the summons be served on the defendants in the manner provided in rule 9 of
Order V, it will direct the plaintiff to present as many copies of the plaint
on plain paper as there are defendants within seven days from the date of such
order along with requisite fee for service of summons on the defendants.]
Rule – [10.
Return of plaint.
(1)
[Subject
to the provisions of rule 10A, the plaint shall] at any stage of the suit be
returned to be presented to the Court in which the suit should have been
instituted.
[Explanation.
For the removal of doubts, it is hereby declared that a Court of appeal or
revision may direct after setting aside the decree passed in a suit, the return
of the plaint under this sub-rule.]
(2)
Procedure on returning plaint. -On returning
a plaint, the Judge shall endorse thereon the date of its presentation and
return, the name of the party presenting it, and a brief statement of the
reasons for returning it.
Rule - [10A.
Power of Court to fix a date of appearance in the Court where plaint is to be
filed after its return.
(1)
Where, in any suit, after the defendant has
appeared, the Court is of opinion that the plaint should be returned, it shall,
before doing so, intimate its decision to the plaintiff.]
(2)
Where an intimation is given to the plaintiff
under sub-rule (1), the plaintiff may make an application to thc Court-
(a)
specifying the Court in which he proposes to
present the plaint after its return,
(b)
praying that the Court may fix a date for the
appearance of the parties in the said Court, and
(c)
requesting that the notice of the date so
fixed may be given to him and to the defendant.
(3)
Where an application is made by the plaintiff
under sub-rule (2), the Court shall, before returning the plaint and notwithstanding
that the order for return of plaint was made by it on the ground that it has no
jurisdiction to try the suit,
(a)
fix a date for the appearance of the parties
in the Court in which the plaint is proposed to be presented, and
(b)
give to the plaintiff and to the defendant
notice of such date for appearance.
(4)
Where the notice of the date for appearance
is given under sub-rule (3),
(a)
it shall not be necessary for the Court in
which the plaint is presented after its return, to serve the defendant with a
summons for appearance in the suit, unless that Court, for reasons to be
recorded, otherwise directs, and
(b)
the said notice shall be deemed to be a
summons for the appearance of the defendant in the Court in which the plaint is
presented on the date so fixed by the Court by which the plaint was returned.
(5)
Where the application made by the plaintiff
under sub-rule (2) is allowed by the Court, the plaintiff shall not be entitled
to appeal against the order returning the plaint.
Rule - 10B. Power of appellate Court to
transfer suit to the proper Court.
(1)
Where, on an appeal against an order for the
return of plaint, the Court hearing the appeal confirms such order, the Court
of appeal may, if the plaintiff by an application so desires, while returning
the plaint, direct plaintiff to file the plaint, subject to the provisions of
the Limitation Act, 1963 (36 of 1963), in the Court in which the suit should
have been instituted, (whether such Court is within or without the State in
which the Court hearing the appeal is situated), and fix a date for the
appearance of the parties in the Court in which the plaint is directed to be
filed and when the date is so fixed it shall not be necessary for the Court in
which the plaint is filed to serve the defendant with the summons for
appearance in the suit, unless that Court in which the plaint is filed, for
reasons to be recorded, otherwise directs.
(2)
The direction made by the Court under
sub-rule (1) shall be without any prejudice to the rights of the parties to
question the jurisdiction of the Court, in which the plaint is filed, to try
the suit.]
Rule - 11. Rejection of plaint.
The plaint shall be rejected
in the following cases:-
(a)
where it does not disclose a cause of action;
(b)
where the relief claimed is undervalued, and
the plaintiff, on being required by the Court to correct the valuation within a
time to be fixed by the Court, fails to do so;
(c)
where the relief claimed is properly valued,
but the plaint is returned upon paper insufficiently stamped, and the
plaintiff, on being required by the Court to supply the requisite stamp-paper
within a time to be fixed by the Court, fails to do so;
(d)
where the suit appears from the statement in
the plaint to be barred by any law;
[(e)
where it is not filed in duplicate;]
[(f)
where the plaintiff fails to comply with the provisions of rule 9:]
[Provided
that the time fixed by the Court for the correction of the valuation or
supplying of the requisite stamp-paper shall not be extended unless the Court,
for reasons to be recorded, is satisfied that the plaintiff was prevented by
any cause of an exceptional nature from correcting the valuation or supplying
the requisite stamp-paper, as the case may be, within the time fixed by the
Court and that refusal to extend such time would cause grave injustice to the
plaintiff.]
Rule - 12. Procedure on rejecting plaint.
Where a plaint is rejected
the Judge shall record an order to that effect with the reasons for such order.
Rule - 13. Where rejection of plaint does not
preclude presentation of fresh plaint.
The rejection of the plaint
on any of the grounds hereinbefore mentioned shall not of its own force
preclude the plaintiff from presenting a fresh plaint in respect of the same
cause of action.
Documents
relied on in plaint
Rule - [14.
Production of document on which plaintiff sues or relies.
(1)
Where a plaintiff sues upon a document or
relies upon document in his possession or power in support of his claim, he
shall enter such documents in a list, and shall produce it in Court when the
plaint is presented by him and shall, at the same time deliver the document and
a copy thereof, to be filed with the plaint.
(2)
Where any such document is not in the
possession or power of the plaintiff, he shall, wherever possible, state in
whose possession or power it is.
[(3)
A document which ought to be produced in Court by the plaintiff when the plaint
is presented, or to be entered in the list to be added or annexed to the plaint
but is not produced or entered accordingly, shall not, without the leave of the
Court, be received in evidence on his behalf at the hearing of the suit.]
(4) Nothing in this rule shall apply to document
produced for the cross-examination of the plaintiffs witnesses, or handed over
to a witness merely to refresh his memory.]
Rule - 15. [Statement
in case of documents not in plaintiff possession or powers.]
[* * *]
Rule - 16. Suits on lost negotiable
instruments.
Where the suit is founded
upon a negotiable instrument, and it is proved that the instrument is lost, and
an indemnity is given by the plaintiff, to the satisfaction of the Court,
against the claims of any other person upon such instrument, the Court may pass
such decree as it would have passed if the plaintiff had produced the
instrument in Court when the plaint was presented, and had at the same time
delivered a copy of the instrument to be filed with the plaint.
Rule - 17. Production of shop-book.
(1)
Save in so far as is otherwise provided by
the Bankers’ Books Evidence Act, 1891 (XVIII of 1891), where the document on
which the plaintiff sues is an entry in a shop-book or other account in his
possession or power, the plaintiff shall produce the book or account at the
time of filing the plaint, together with a copy of the entry on which he
relies.
(2)
Original entry to be marked and returned.-The
Court or such officer as it appoints in this behalf, shall forthwith mark the
document for the purpose of identification; and, after examining and comparing
the copy with the original, shall, if it is found correct, certify it to be so
and return the book to the plaintiff and cause the copy to be filed.
Rule - 18. [Inadmissibility
of document not produced when plaint filed.]
[* * *]
State Amendment
Sikkim
Amendment of Order
VII :-
In
the First Schedule, in Order VII,-
(i)
for rule 9 (as substituted
by clause (i) of section 17 of the Code of Civil Procedure (Amendment) Act,
1999], the following rule shall be substituted, namely:-
46 of 1999
Procedure on admitting plaint.
9. Where
the Court orders that the summons be served on the defendants in the manner
provided in rule 9 of Order V, it will direct the plaintiff to present as many
copies of the plaint on plain paper as there are defendants within seven days
from the date of such order along with requisite fee for service of summons on
the defendants.”
(ii)
in rule 11, for
sub-clauses (f) and (g) [ as inserted by clause (ii) of section 17 of the Code
of civil Procedure (Amendment) Act, 1999] , the following sub-clause shall be
substituted, namely:-
“(f) where
the plaintiff fails to comply with the provisions of rule 9.”
(iii)
in rule 14 [as
substituted by clause (iii) of section 17 of he Code of Civil Procedure
(Amendment) Act, 1999], for sub-rule (3), the following sub-rule shall be
substituted, namely:-
46 of 1999
“(3) A
document which ought to be produced in Court by the Plaintiff when the plaint
is presented, or to be entered in the list to be added or annexed to the plaint
but is not produced or entered accordingly, shall not, without the leave of the
Court, be received in evidence on his behalf at the hearing of the suit.”
(iii) rule 18
(as amended by clause (v) of section 17 of the Code of Civil Procedure
(Amendment) Act, 1999] shall be omitted.
[Vide
Sikkim Act 22 of 2002]
ORDER VIII [352][WRITTEN STATEMENT, SET-OFF AND COUNTER-CLAIM]
Rule - [1.
Written Statement.
The Defendant shall, within
thirty days from the date of service of summons on him, present a written
statement of his defence:
Provided that where the
defendant fails to file the written statement within the said period of thirty
days, he shall be allowed to file the same on such other day, as may be
specified by the Court, for reasons to be recorded in writing, but which shall
not be later than ninety days from the date of service of summons.]
[Provided
that where the defendant fails to file the written statement within the said
period of thirty days, he shall be allowed to file the written statement on
such other day, as may be specified by the Court, for reasons to be recorded in
writing and on payment of such costs as the Court deems fit, but which shall
not be later than one hundred twenty days from the date of service of summons
and on expiry of one hundred twenty days from the date of service of summons,
the defendant shall forfeit the right to file the written statement and the
Court shall not allow the written statement to be taken on record.]
STATE
AMENDMENTS
Jammu and Kashmir and Ladakh
(UTs). -
In Rule 1, for the proviso
thereto, substitute the following proviso, namely,-
Provided that where the
defendant fails to file the written statement with the said period of thirty
days, he shall be allowed to file the written statement on such other day, as
may be specified by the court, for reasons to be recorded in writing and on
payment of such costs as the court deems fit, but which shall not be later than
one hundred twenty days from the date of service of summons and on expiry of
one hundred twenty days from the date of service of summons, the defendant
shall forfeit the right to file the written statement and the court shall not
allow the written statement to be taken on record.
[Vide the Jammu and Kashmir
Reorganisation (Adaptation of Central Laws) Order, 2020, notification No. S.O.
1123(E) dated (18-3-2020) and vide Union Territory of Ladakh Reorganisation
(Adaptation of Central Laws) Order, 2020, Notification No. S.O. 3774(E), dated
(23-10-2020)].
Rule - [1A.
Duty of defendant to produce documents upon which relief is claimed or relied
upon by him.
(1)
Where the defendant bases his defence upon a
document or relies upon any document in his possession or power, in support of
his defence or claim for set-off or counter-claim, he shall enter such document
in a list, and shall produce it in Court when the written statement is
presented by him and shall, at the same time, deliver the document and a copy
thereof, to be filed with the written statement.
(2)
Where any such document is not in the
possession or power of the defendant, he shall, wherever possible, state in
whose possession or power it is.
[(3)
A document which ought to be produced in Court by the defendant under this
rule, but, is not so produced shall not, without the leave of the Court, be
received in evidence on his behalf at the hearing of the suit.]
(4)
Nothing in this rule shall apply to documents-
(a)
produced for the cross-examination of the
plaintiff's witnesses, or
(b)
handed over to a witness merely to refresh
his memory.]
Rule - 2. New facts must be specially
pleaded.
The defendant must raise by
his pleading all matters which show the suit not be maintainable, or that the
transaction is either void or voidable in point of law, and all such grounds of
defence as, if not raised, would be likely to take the opposite party by
surprise, or would raise issues of fact not arising out of the plaint, as, for
instance, fraud, limitation, release, payment, performance, or facts showing
illegality.
Rule - 3. Denial to be specific.
It shall not be sufficient
for a defendant in his written statement to deny generally the grounds alleged
by the plaintiff, but the defendant must deal specifically with each allegation
of fact of which he does not admit the truth, except damages.
Rule - [3A.
Denial by the defendant in suits before the Commercial Division of the High
Court or the Commercial Court.
(1)
Denial shall be in the manner provided in
sub-rules (2), (3), (4) and (5) of this Rule.
(2)
The defendant in his written statement shall
state which of the allegations in the particulars of plaint he denies, which
allegations he is unable to admit or deny, but which he requires the plaintiff
to prove, and which allegations he admits.
(3)
Where the defendant denies an allegation of
fact in a plaint, he must state his reasons for doing so and if he intends to
put forward a different version of events from that given by the plaintiff, he
must state his own version.
(4)
If the defendant disputes the jurisdiction of
the Court he must state the reasons for doing so, and if he is able, give his
own statement as to which Court ought to have jurisdiction.
(5)
If the defendant disputes the plaintiff’s
valuation of the suit, he must state his reasons for doing so, and if he is
able, give his own statement of the value of the suit.]
STATE
AMENDMENT
Jammu and Kashmir and Ladakh
(UTs).?
After Rue 3, insert the
following Rule, namely,-
“3A.
Denial by the defendant in suits.
(1)
Denial shall be in the manner provided in
sub-rules (2), (3), (4) and (5) of this rule.
(2)
The defendant in his written statement shall
state which of the allegations in the particulars of plaint he denies, which
allegations he is unable to admit or deny, but which he requires the plaintiff
to prove, and which allegations he admits.
(3)
Where the defendant denies an allegation of
fact in a plaint, he must state his reasons for doing so and if he intends to
put forward a different version of events from that given by the plaintiff, he
must state his own version.
(4)
If the defendant disputes the jurisdiction of
the court he must state the reasons for doing so, and if he is able, give his
own statement as to which court ought to have jurisdiction.
(5)
If the defendant disputes the plaintiff
valuation of the suit, he must state his reasons for doing so, and if he is
able, give his own statement of the value of the suit.
[Vide the Jammu and Kashmir
Reorganisation (Adaptation of Central Laws) Order, 2020, notification No. S.O.
1123(E) dated (18-3-2020) and vide Union Territory of Ladakh Reorganisation
(Adaptation of Central Laws) Order, 2020, Notification No. S.O. 3774(E), dated
(23-10-2020)].
Rule - 4. Evasive-denial.
Where a defendant denies an
allegation of fact in the plaint, he must not do so evasively, but answer the
point of substance. Thus, if it is alleged that he received a certain sum of
money, it shall not be sufficient to deny that he received that particular
amount, but he must deny that he received that sum or any part thereof, or else
set out how much he received. And if an allegation is made with diverse
circumstances, it shall not be sufficient to deny it along with those
circumstances.
Rule - 5. Specific denial.
[(1)]
Every allegation of fact in the plaint, if not denied specifically or by
necessary implication, or stated to be not admitted in the pleading of the
defendant, shall be taken to be admitted except as against a person under
disability:
Provided that the Court may
in its discretion require any fact so admitted to be proved otherwise than by
such admission:
[Provided
further that every allegation of fact in the plaint, if not denied in the manner
provided under Rule 3A of this Order, shall be taken to be admitted except as
against a person under disability.]
[(2)
Where the defendant has not filed a pleading, it shall be lawful for the court
to pronounce judgment on the basis of the facts contained in the plaint, except
as against a person under a disability, but the Court may, in its discretion,
require any such fact to be proved.
(3) In exercising its discretion under the
proviso to sub-rule (1) or under sub-rule (2), the Court shall have due regard
to the fact whether the defendant could have, or has, engaged a pleader.
(4) Whenever a judgment is pronounced under this
rule, a decree shall be drawn up in accordance with such judgment and such
decree shall bear the date on which the judgment was pronounced.]
STATE
AMENDMENT
Jammu and Kashmir and Ladakh
(UTs).
In Rule 5, in sub-rule (1)
after first proviso thereto, insert the following proviso, namely:-
Provided further, that every
allegation of fact in the plaint, if not denied in the manner provided under
Rue 3-A of this order, shall be taken to be admitted except as against a person
under disability.
[Vide the Jammu and Kashmir
Reorganisation (Adaptation of Central Laws) Order, 2020, notification No. S.O.
1123(E) dated (18-3-2020) and vide Union Territory of Ladakh Reorganisation
(Adaptation of Central Laws) Order, 2020, Notification No. S.O. 3774(E), dated
(23-10-2020)].
Rule - 6. Particulars of set-off to be given
in written statement.
(1)
Where in a suit for the recovery of money the
defendant claims to set-off against the plaintiff's demand any ascertained sum
of money legally recoverable by him from the plaintiff, not exceeding the
pecuniary limits of the jurisdiction of the Court, and both parties fill the
same character as they fill in the plaintiff's suit, the defendant may, at the
first hearing of the suit, but not afterwards unless permitted by the Court,
presents a written statement containing the particulars of the debt sought to
be set-off.
(2)
Effect of set-off.-The written statement shall
have the same effect as a plaint in a cross-suit so as to enable the court to
pronounce a final judgment in respect both of the original claim and of the
set-off: but this shall not affect the lien, upon the amount decreed, of any
pleader in respect of the costs payable to him under the decree.
(3)
The rules relating to a written statement by
a defendant apply to a written statement in answer to a claim of set-off.
Illustrations
(a)
A bequeaths Rs. 2,000 to B and appoints C his
executor and residuary legatee. B dies and D takes out administration to B's
effects, C pays Rs, 1,000 as surety for D; then D sues C for the legacy. C
cannot set -off the debt of Rs. 1,000 against the legacy, for neither C nor D
fills the same character with respect to the legacy as they fill with respect
to the payment of the Rs. 1,000.
(b)
A dies intestate and in debt to B. C takes
out administration to A’s effects and B buys part of the effects from C. In a
suit for the purchase-money by C against B, the latter cannot set-off the debt
against the price, for C fills two different characters, one as the vendor to
B, in which he sues B, and the other as representative to A.
(c)
A sues B on a bill of exchange. B alleges
that A has wrongfully neglected to insure B's goods and is liable to him in compensation
which he claims to set-off. The amount not being ascertained cannot be set-off.
(d)
A sues B on a bill of exchange for Rs. 500. B
holds a judgment against A for Rs. 1,000. The two claims being both definite
pecuniary demands may be set-off.
(e)
A sues B for compensation on account of
trespass. B hold a promissory note for Rs. 1,000 from A and claims to set-off
that amount against any sum that A may recover in the suit. B may do so, for,
as soon as A recovers, both sums are definite pecuniary demands.
(f)
A and B sue C for Rs. 1,000. C cannot set-off
a debt due to him by A alone.
(g)
A sues B and C for Rs. 1,000. B cannot
set-off a debt due to him alone by A.
(h)
A owes the partnership firm of B and C Rs.
1,000. B dies, leaving C surviving. A sues C for a debt for Rs. 1,500 due in
his separate character. C may set-off the debt of Rs. 1,000.
Rule - [6A.
Counter-claim by defendant.
(1)
A defendant in a suit may, in addition to his
right of pleading a set-off under rule 6, set up, by way of counter-claim
against the claim of the plaintiff, any right or claim in respect of a cause of
action accruing to the defendant against the plaintiff either before or after
the filing of the suit but before the defendant has delivered his defence or
before the time limited for delivering his defence has expired, whether such
counter-claim is in the nature of a claim for damages or not:
Provided that such
counter-claim shall not exceed the pecuniary limits of the jurisdiction of the
court.
(2)
Such counter-claim shall have the same effect
as a cross-suit so as to enable the Court to pro- nounce a final judgment in
the same suit, both on the original claim and on the counter-claim.
(3)
The plaintiff shall be at liberty to file a
written statement in answer to the counter-claim of the defendant within such
period as may be fixed by the court.
(4)
The counter-claim shall be treated as a
plaint and governed by the rules applicable to plaints.
Rule - 6B. Counter-claim to be stated.
Where any defendant seeks to
rely upon any ground as support- ing a right of counter-claim, he shall, in his
written statement, state specifically that he does so by way of counter-claim.
Rule - 6C. Exclusion of counter-claim.
Where a defendant sets up a
counter-claim and the plaintiff con- tends that the claim thereby raised ought
not to be disposed of by way of counter-claim but in an indepen- dent suit, the
plaintiff may, at any time before issues are settled in relation to the
counter-claim, apply to the Court for an order that such counter-claim may be
excluded, and the Court may, on the hearing of such application make such order
as it thinks fit.
Rule - 6D. Effect of discontinuance of suit.
If in any case in which the
defendant sets up a counterclaim, the suit of the plaintiff is stayed,
discontinued or dismissed, the counter-claim may nevertheless be proceeded
with.
Rule - 6E. Default of plaintiff to reply to
counter-claim.
If the plaintiff makes
default in putting in a reply to the counter-claim made by the defendant, the
Court may pronounce judgment against the plaintiff in relation to the
counter-claim made against him, or make such order in relation to the
counter-claim as it thinks fit.
Rule - 6F. Relief to defendant where
counter-claim succeeds.
Where in any suit a set-off
or counter- claim is established as a defence against the plaintiff’s claim and
any balance is found due to the plaintiff or the defendant, as the case may be.
the Court may give judgment to the party entitled to such balance.
Rule - 6G. Rules relating to written
statement to apply.
The rules relating to a
written statement by a defendant shall apply to a written statement filed in
answer to a counter-claim.]
Rule - 7. Defence or set-off founded upon separate
grounds.
Where the defendant relies
upon several distinct grounds of defence or set-off [or
counter-claim] founded upon separate and distinct facts, they shall be stated,
as far as may be, separately and distinctly.
Rule - 8. New ground of defence.
Any ground of defence which
has arisen after the institution of the suit or the presentation of a written
statement claiming a set-off 1[or counter-claim] may be raised by the defendant
or plaintiff, as the case may be, in his written statement.
Rule - 8A. [Duty
of defendant to produce documents upon which relief is claimed by him.]
[* * *]
Rule - [9.
Subsequent pleadings.
No pleading subsequent to
the written statement of a defendant other than by way of defence to set-off or
counter-claim shall be presented except by the leave of the Court and upon such
terms as the Court thinks fit; but the Court may at any time require a written
statement or additional written statement from any of the parties and fix a
time of not more than thirty days for presenting the same.
Rule - 10. Procedure when party fails to
present written statement called for by Court.
Where any party from whom a
written statement is required under rule 1 or rule 9 fails to present the same
within the time permitted or fixed by the Court, as the case may be, the Court
shall pronounce judgment against him, or make such order in relation to the
suit as it thinks fit and on the pronouncement of such judgment a decree shall
be drawn up:]
[Provided
further that no Court shall make an order to extend the time provided under
Rule 1 of this Order for filing of the written statement.]
STATE
AMENDMENT
Jammu and Kashmir and Ladakh
(UTs).
In Rule 10, insert the
following proviso, namely:-
Provided that no court shall
make an order to extend the time provided under Rule 1 of this order for filing
of the written statement.
[Vide the Jammu and Kashmir Reorganisation
(Adaptation of Central Laws) Order, 2020, notification No. S.O. 1123(E) dated
(18-3-2020) and vide Union Territory of Ladakh Reorganisation (Adaptation of
Central Laws) Order, 2020, Notification No. S.O. 3774(E), dated (23-10-2020)].
Sikkim
Amendment
of Order VIII :-
In the First Schedule, in
Order VIII,-
(i)
for rule 1 (as substituted by clause (i) of
section 18 of the Code of Civil Procedure (Amendment) Act, 1999] , the
following rule shall be substituted, namely:-
46
of 1999
Written
statement.
“1. The defendant shall, within thirty days from
the date of service of summons on him, present a written statement of his
defence:
Provided that where the
defendant fails to file the written statement within the said period of thirty
days, he shall be allowed to file the same on such other day, as may be
specified by the Court, for reasons to be recorded in writing, but which shall
not be later than ninety days from the date of service of summons.”
(ii)
in rule 1 A (as inserted by clause (ii) of
section 18 of the Code of Civil Procedure (Amendment) Act, 1999), for sub-rule
(3) , the following sub-rule shall be substituted, namely:-
46
of 1999
“(3)
a document which ought to be produced in
Court by the defendant under this rule, but, is not so produced shall not,
without the leave of the Court, be received in evidence on his behalf at the
hearing of the suit”
(iii)
for rule 9 and 10 (as they stood immediately
before their omission by clause (iii) of section 18 of the Code of Civil
Procedure (Amendment) Act, 1999] , the following rules shall be substituted,
namely:-
46
of 1999
Subsequent
pleadings
“9. No pleading subsequent to the written
statement of a defendant other than by way of defence to set - off or
counter-claim shall be presented except by the leave of the Court and upon such
terms as the Court thinks fit; but the Court may at any time require a written
statement or additional written statement from any of the parties cut and fix a
time of not more than thirty days for presenting the same.
[Vide Sikkim Act 22 of 2002]
ORDER IX APPEARANCE OF PARTIES AND CONSEQUENCE OF NON-APPEARANCE
Rule - 1. Parties to appear on day fixed in summons for defendant to appear and
answer.
On the day fixed in the
summons for the defendant to appear and answer, the parties shall be in
attendance at the Court-house in person or by their respective pleaders, and
the suit shall then be heard unless the hearing is adjourned to a future day
fixed by the Court.
Rule - [2.
Dismissal of suit where summons not served in consequence of plaintiff's
failure to pay costs.
Where on the day so fixed it
is found that summons has not been served upon the defendant in consequence of
the failure of the plaintiff to pay the court-fee or postal charges, if any,
chargeable for such service, or failure to present copies of the plaint as
required by rule 9 of Order VII, the Court may make an order that the suit be
dismissed:
Provided that no such order
shall be made, if notwithstanding such failure, the defendant attends in person
or by agent when he is allowed to appear by agent on the day fixed for him to
appear and answer.]
Rule - 3. Where neither party appears suit to
be dismissed.
Where neither party appears
when the suit is called on for hearing, the court may make an order that the
suit be dismissed.
Rule - 4. Plaintiff may bring fresh suit or
Court may restore suit to file.
Where a suit is dismissed
under rule 2 or rule 3, the plaintiff may (subject to the law of limitation)
bring a fresh suit; or he may apply for an order to set the dismissal aside, and
if he satisfies the Court that there was sufficient cause for [such
failure as is referred to in rule 2], or for his non-appearance, as the case
may be, the Court shall make an order setting aside the dismissal and shall
appoint a day for proceeding with the suit.
Rule - 5. Dismissal of suit where plaintiff
after summons returned unserved, fails for [seven
days] to apply for fresh summons.
[(1)
Where after a summons has been issued to the defendant, or to one of several
defendants, and returned unserved, the plaintiff fails, for a period of [seven
days] from the date of the return made to the Court by the officer ordinarily
certifying to the Court returns made by the serving officers, to apply for the
issue of a fresh summons the Court shall make an order that the suit be
dismissed as against such defendant, unless the plaintiff has within the said
period satisfied the Court that-
(a)
he has failed after using his best endeavours
to discover the residence of the defendant, who has not been served, or
(b)
such defendant is avoiding service of
process, or
(c)
there is any other sufficient cause for
extending the time, in which case the Court may extend the time for making such
application for such period as it thinks fit.]
(2)
In such case the plaintiff may (subject to the law of limitation) bring a fresh
suit.
Rule - 6. Procedure when only plaintiff
appears.
(1)
Where the plaintiff appears and the defendant
does not appear when the suit is called on for hearing, then;
[(a)
When summons duly served.-if it is proved that the summons was duly served, the
Court may make an order that the suit shall be heard ex parte;]
(b) When summons not duly served.-if it is not
proved that the summons was duly served, the Court shall direct a second
summons to be issued and served on the defendant;
(c) When summons served but not in due time.-if
it is proved that the summons was served on the defendant, but not in
sufficient time to enable him to appear and answer on the day fixed in the
summons, the Court shall postpone the hearing of the suit to a future day to be
fixed by the Court, and shall direct notice of such day to be given to the
defendant.
(2)
Where it is owing to the plaintiff’s default
that the summons was not duly served or was not served in sufficient time, the
Court shall order the plaintiff to pay the costs occasioned by the
postponement.
Rule - 7. Procedure where defendant appears
on day of adjourned hearing and assigns good cause for previous non-appearance.
Where the Court has
adjourned the hearing of the suit, ex parte, and the defendant, at or before
such hearing appears and assigns good cause for his previous non-appearance, he
may, upon such terms as the Court directs as to costs or otherwise, be heard in
answer to the suit as if he had appeared on the day fixed for his appearance.
Rule - 8. Procedure where defendant only
appears.
Where the defendant appears
and the plaintiff does not appear when the suit is called on for hearing, the
Court shall make an order that the suit be dismissed, unless the defendant
admits the claim, or part thereof, in which case the Court shall pass a decree
against the defendant upon such admission, and where part only of the claim has
been admitted, shall dismiss the suit so far as it relates to the remainder.
Rule - 9. Decree against plaintiff by default
bars fresh suit.
(a)
Where a suit is wholly or partly dis- missed
under rule 8, the plaintiff shall be precluded from bringing a fresh suit in
respect of the same cause of action. But he may apply for an order to set the
dismissal aside, and if he satisfies the Court that there was sufficient cause
for his non-appearance when the suit was called on for hearing, the Court shall
make an order setting aside the dismissal upon such terms as to costs or
otherwise as it thinks fit, and shall appoint a day for proceeding with the
suit.
(b)
No order shall be made under this rule unless
notice of the application has been served on the opposite party.
Rule - 10. Procedure in case of
non-attendance of one or more of several plaintiff's.
Where there are more
plaintiffs than one, and one or more of them appear, and the others do not
appear, the Court may, at the instance of the plaintiff or plaintiff’s
appearing, permit the suit to proceed in the same way as if all the plaintiff’s
had appeared, or make such order as it thinks fit.
Rule - 11. Procedure in case of
non-attendance of one or more of several defendants.
Where there are more
defendants than one, and one or more of them appear, and the others do not
appear, the suit shall proceed, and the Court shall, at the time of pronouncing
judgment, make such order as it thinks fit with respect to the defendants who
do not appear.
Rule - 12. Consequence of non-attendance,
without sufficient cause shown, of party ordered to appear in person.
Where a plaintiff or
defendant, who has been ordered to appear in person, does not appear in person,
or show sufficient cause to the satisfaction of the court for failing so to
appear, he shall be subject to all provisions of the foregoing rules applicable
to plaintiffs and defendants, respectively who do not appear.
Setting
aside Decrees ex parte
Rule - 13. Setting aside decree ex parte
against defendant.
In any case in which a
decree is passed ex parte against a defendant, he may apply to the Court by
which the decree was passed for an order to set it aside; and if he satisfies
the Court that the summons was not duly served, or that he was prevented by any
sufficient cause from appearing when the suit was called on for hearing, the
Court shall make an order setting aside the decree as against him upon such
terms as to costs, payment into Court or otherwise as it thinks fit, and shall
appoint a day for proceeding with the suit:
Provided that where the
decree is of such a nature that it cannot be set aside as against such defendant
only it may be set aside as against all or any of the other defendants also:
[Provided
further than no Court shall set aside a decree passed ex parte merely on the
ground that there has been an irregularity in the service of summons, if it is
satisfied that the defendant had notice of the date of hearing and had
sufficient time to appear and answer the plaintiff's claim.]
[Explanation.-Where
there has been an appeal against a decree passed ex parte under this rule, and
the appeal has been disposed of an any ground other than the ground that the
appellant has withdrawn the appeal, no application shall lie under this rule
for setting aside that ex parte decree.]
Rule - 14. No decree to be set aside without
notice to opposite party.
No decree shall be set aside
on any such application as aforesaid unless notice thereof has been served on
the opposite party.
ORDER X EXAMINATION OF PARTIES BY THE COURT
Rule - 1. Ascertainment whether allegations in pleadings are admitted or
denied.
At the first hearing of the
suit the Court shall ascertain from each party or his pleader whether he admits
or denies such allegations of fact as are made in the plaint or written
statement (if any) of the opposite party, and as are not expressly or by
necessary implication admitted or denied by the party against whom they are
made. The Court shall record such admissions and denials.
Rule - [1A.
Direction of the court to opt for any one mode of alternative dispute
resolution.
After recording the
admissions and denials, the court shall direct the parties to the suit to opt
either mode of the settlement outside the court as specified in sub-section (1)
of section 89. On the option of the parties, the court shall fix the date of
appearance before such forum or authority as may be opted by the parties.
Rule - 1B. Appearance before the conciliatory
forum or authority.
Where a suit is referred
under rule 1A, the parties shall appear before such forum or authority for
conciliation of the suit.
Rule - 1C. Appearance before the court consequent
to the failure of efforts of conciliation.
Where a suit is referred
under rule 1A, and the presiding officer of conciliation forum or authority is
satisfied that it would not be proper in the interest of justice to proceed
with the matter further, then, it shall refer the matter again to the court and
direct the parties to appear before the court on the date fixed by it.]
Rule - [2.
Oral examination of party, or companion of party.
(1)
At the first hearing of the suit, the Court-
(a)
shall, with a view to elucidating matters in
controversy in the suit examine orally such of the parties to the suit
appearing in person or present in Court, as it deems fit; and
(b)
may orally examine any person, able to answer
any material question relating to the suit, by whom any party appearing in
person or present in Court or his pleader is accompanied.
(2)
At any subsequent hearing, the Court may
orally examine any party appearing in person or present in Court, or any
person, able to answer any material question relating to the suit, by whom such
party or his pleader is accompanied.
(3)
The Court may, if it thinks fit, put in the
course of an examination under this rule questions suggested by either party.]
Rule – [3.
Substance of examination to be written.
The substance of the
examination shall be reduced to writing by the Judge, and shall form part of
the record.
Rule - 4. Consequence of refusal or inability
of pleader to answer.
(1)
Where the pleader of any party who appears by
a pleader or any such person accompanying a pleader as is referred to in rule
2, refuses or is unable to answer any material question relating to the suit
which the Court is of opinion that the party whom he represents ought to
answer, and is likely to be able to answer if interrogated in person, the Court
[may
postpone the hearing of the suit to a day not later than seven days from the
date of first hearing] and direct that such party shall appear in person on
such day.
(2)
If such party fails without lawful excuse to
appear in person on the day so appointed, the Court may pronounce judgment
against him, or make such order in relation to the suit as it thinks fit.
ORDER XI DISCOVERY AND INSPECTION
Rule - 1. Discovery by interrogatories.
In any suit the plaintiff or
defendant by leave of the Court may deliver interrogatories in writing for the
examination of the opposite parties or any one or more of such parties and such
interrogatories when delivered shall have a note at the foot thereof stating
which of such interrogatories each of such person is required to answer:
Provided that no party shall deliver more than one set of interrogatories to
the same party without an order for that purpose: Provided also that
interrogatories which do not relate to any matters in question in the suit
shall be deemed irrelevant, notwithstanding that they might be admissible on
the oral cross-examination of a witness.
Rule - 2. Particular interrogatories to be
submitted.
On an application for leave
to deliver interrogatories, the particular interrogatories proposed to be
delivered shall be submitted to the Court [and
that court shall decide within seven days from the day of filing of the said
application]. In deciding upon such application, the Court shall take into
account any offer, which may be made by the party sought to be interrogated to
deliver particulars, or to make admissions, or to produce documents relating to
the matters in question, or any of them, and leave shall be given as to such
only of the interrogatories submitted as the Court shall consider necessary
either for disposing fairly of the suit or for saving costs.
Rule - 3. Costs of interrogatories.
In adjusting the costs of
the suit inquiry shall at the instance of any party be made into the propriety
of exhibiting such interrogatories, and if it is the opinion of the taxing
officer or of the Court, either with or without an application for inquiry,
that such interrogatories have been exhibited unreasonably, vexatiously, or at
improper length, the cost occasioned by the interrogatories and the answers
thereto shall be paid in any even by the party in fault.
Rule - 4. Form of interrogatories.
Interrogatories shall be in
Form No. 2 in Appendix C, with such variations as circumstances may require.
Rule - 5. Corporations.
Where any party to a suit is
a corporation or a body of persons, whether incorporated or not, empowered by
law to sue or be sued, whether in its own name or in the name of any officer or
other person, any opposite party may apply for an order allowing him to deliver
interrogatories to any member or officer of such corporation or body, and an
order may be made accordingly.
Rule - 6. Objections to interrogatories by
answer.
Any objection to answering
any interrogatory on the ground that it is scandalous or irrelevant or not
exhibited bona fide for the purpose of the suit, or that the matters inquired
into are not sufficiently material at that stage, [or
on the ground of privilege or any other ground], may be taken in the affidavit
in answer.
Rule - 7. Setting aside and striking out
interrogatories.
Any interrogatories may be
set aside on the ground that they have been exhibited unreasonably or
vexatiously, or struck out on the ground that they are prolix, oppressive,
unnecessary or scandalous; and any application for this purpose may be made
within seven days after service of the interrogatories.
Rule - 8. Affidavit in answer, filing.
Interrogatories shall be
answered by affidavit to be filed within ten days or within such other time as
the Court may allow.
Rule - 9. Form of affidavit in answer.
An affidavit in answer to
interrogatories shall be in Form No. 3 in Appendix C, with such variations as
circumstances may require.
Rule - 10. No exception to be taken.
No exceptions shall be taken
to any affidavit in answer, but the sufficiency or otherwise of any such
affidavit objected to as insufficient shall be determined by the Court.
Rule - 11. Order to answer or answer further.
Where any person
interrogated omits to answer, or answer insufficiently, the party interrogating
may apply to the Court for an order requiring him to answer, or to answer
further, as the case may be. And an order may be made requiring him to answer
or answer further, either by affidavit or by viva voce examination, as the
Court may direct.
Rule - 12. Application for discovery of
documents.
Any party may, without
filing any affidavit, apply to the Court for an order directing any other party
to any suit to make discovery on oaths, of the documents which are or have been
in his possession or power, relating to any matter in question therein. On the
hearing of such application the Court may either refuse or adjourn the same, if
satisfied that such discovery is not necessary, or not necessary at that stage
of the suit, or make such order, either generally or limited to certain classes
of documents, as may, in its discretion be thought fit: Provided that discovery
shall not be ordered when and so far as the Court shall be of opinion that it
is not necessary either for disposing fairly of the suit or for saving costs.
Rule - 13. Affidavit of documents.
The affidavit to be made by
a party against whom such order as is mentioned in the last preceding rule has
been made, shall specify which (if any) of the documents therein mentioned he
objects to produce, and it shall be in Form No. 5 in Appendix C, with such
variations as circumstances may require.
Rule - 14. Production of documents.
It shall be lawful for the
Court, at any time during the pendency of any suit, to order the production by
any party thereto, upon oath, of such of the documents in his possession or
power, relating to any matter in question in such suit, as the Court shall
think right; and the Court may deal with such documents, when produced, in such
manner as shall appear just.
Rule - 15. Inspection of documents referred
to in pleadings or affidavits.
Every party to a suit shall
be entitled [at
or before the settlement of issues] to give notice to any other party, in whose
pleadings or affidavits reference is made to any document, [or
who has entered any document in any list annexed to his pleadings,] to produce
such document for the inspection of the party giving such notice, or of his
pleader, and to permit him or them to take copies thereof; and any party not
complying with such notice shall not afterwards be at liberty to put any such
document in evidence on his behalf in such suit unless he shall satisfy the
Court that such document relates only to his own title, he being a defendant to
the suit, or that he had some other cause or excuse which the Court shall deem
sufficient for not complying with such notice, in which case the Court may
allow the same to be put in evidence on such terms as to costs and otherwise as
the Court shall think fit.
Rule - 16. Notice to produce.
Notice to any party to
produce any documents referred to in his pleading or affidavits shall be in
Form No. 7 in Appendix C, with such variations as circumstances may require.
Rule - 17. Time for inspection when notice
given.
The party to whom such
notice is given shall, within ten days from the receipt of such notice, deliver
to the party giving the same a notice stating a time within three days from the
delivery thereof at which the documents, or such of them as he does not object
to produce, may be inspected at the office of his pleader, or in the case of
bankers' books or other books of account or books in constant use for the
purposes of any trade or business, at their usual place of custody, and stating
which (if any) of the documents he objects to produce, and on what ground. Such
notice shall be in Form No. 8 in Appendix C; with such variations as
circumstances may require.
Rule - 18. Order for inspection.
(1)
Where the party served with notice rule 15
omits to give such notice of a time for inspection or objects to give
inspection, or offers inspection elsewhere than at the office of his pleader,
the Court may, on the application of the party desiring it, make an order for
inspection in such place and in such manner as it may think fit: Provided that
the order shall not be made when and so far as the Court shall be of opinion
that it is not necessary either for disposing fairly of the suit or for saving
costs.
(2)
Any application to inspect documents, except
such as are referred to in the pleadings, particulars or affidavit of the party
against whom the application is made or disclosed in his affidavit of
documents, shall be founded upon an affidavit showing of what documents
inspection is sought, that the party applying is entitled to inspect them, and
that they are in the possession or power of the other party. The Court shall
not make such order for inspection of such documents when and so far as the
Court shall be of opinion that it is not necessary either for disposing fairly
of the suit or for saving costs.
Rule - 19. Verified copies.
(1)
Where inspection of any business books is
applied for, the Court may, if it thinks fit, instead of ordering inspection of
the original books, order a copy of any entries therein to be furnished and
verified by the affidavit of some person who has examined the copy with the
original entries, and such affidavit shall state whether or not there are in
the original book any and what erasures, interlineations or alterations:
Provided that, notwithstanding that such copy has been supplied, the Court may
order inspection of the book from which the copy was made.
(2)
Where on an application for an order for
inspection privilege is claimed for any document, it shall be lawful for the
Court to inspect the document for the purpose of deciding as to the validity of
the claim of privilege [unless
the document relates to matters of State.]
(3)
The Court may, on the application of any
party to suit at any time, and whether an affidavit of documents shall or shall
not have already been ordered or made, make an order requiring any other party
to state by affidavit whether any one or more specific documents, to be
specified in the application, is or are, or has or have at any time been, in
his possession or power; and, if not then in his possession, when he parted
with the same and what has become thereof. Such application shall be made on an
affidavit stating that in the belief of the deponent the party against whom the
application is made has, or has at some time had in his possession or power the
document or documents specified in the application, and that they relate to the
matters in question in the suit, or to some of them.
Rule - 20. Premature discovery.
Where the party from whom
discovery of any kind or inspection is sought objects to the same, or any part
thereof, the Court may, if satisfied that the right to the discovery or
inspection sought depends on the determination of any issue or question in
dispute in the suit, or that for any other reason it is desirable that any
issue or question in dispute in the suit should be determined before deciding
upon the right to the discovery or inspection, order that such issue or
question be determined first, and reserve the question as to the discovery or
inspection.
Rule - 21. Non-compliance with order for
discovery.
[(1)]
Where any party fails to comply with any order to answer interrogatories, or
for discovery or inspection of documents, he shall, if a plaintiff, be liable
to have his suit dismissed for want of prosecution, and, if a defendant, to
have his defence, if any struck out, and to be placed in the same position as
if he had not defended, and the party interrogating or seeking discovery or
inspection may apply to the Court for an order to that effect and [an
order may be made on such application accordingly, after notice to the parties
and after giving them a reasonable opportunity of being heard.]
[(2)
Where an order is made under sub-rule (1) dismissing any suit, the plaintiff
shall be precluded from bringing a fresh suit on the same cause of action.]
Rule - 22. Using answer to interrogatories at
trial.
Any party may, at the trial
of a suit, use in evidence any one or more of the answers or any part of an
answer of the opposite party to interrogatories without putting in the others
or the whole of such answer : Provided always that in such case the Court may
look at the whole of the answers, and if it shall be of opinion that any others
of them are so connected with those put in that the last-mentioned answer ought
not to be used without them, it may direct them to be put in.
Rule - 23. Order to apply to minors.
This Order shall apply to
minor plaintiffs and defendants, and to the next friends and guardians for the
suit of persons under disability.
[ORDER XI DISCLOSURE, DISCOVERY AND INSPECTION OF DOCUMENTS IN SUITS BEFORE THE COMMERCIAL DIVISION OF A HIGH COURT OR A COMMERCIAL COURT
Rule - 1. Disclosure and discovery of documents.
(1)
Plaintiff shall file a list of all documents
and photocopies of all documents, in its power, possession, control or custody,
pertaining to the suit, along with the plaint, including:
(a)
documents referred to and relied on by the
plaintiff in the plaint;
(b)
documents relating to any matter in question
in the proceedings, in the power, possession, control or custody of the
plaintiff, as on the date of filing the plaint, irrespective of whether the
same is in support of or adverse to the plaintiff’s case;
(c)
nothing in this Rule shall apply to documents
produced by plaintiffs and relevant only–
(i)
for the cross-examination of the defendant’s
witnesses, or
(ii)
in answer to any case set up by the defendant
subsequent to the filing of the plaint, or
(iii)
handed over to a witness merely to refresh
his memory.
(2)
The list of documents filed with the plaint
shall specify whether the documents in the power, possession, control or
custody of the plaintiff are originals, office copies or photocopies and the
list shall also set out in brief, details of parties to each document, mode of
execution, issuance or receipt and line of custody of each document.
(3)
The plaint shall contain a declaration on
oath from the plaintiff that all documents in the power, possession, control or
custody of the plaintiff, pertaining to the facts and circumstances of the
proceedings initiated by him have been disclosed and copies thereof annexed
with the plaint, and that the plaintiff does not have any other documents in
its power, possession, control or custody.
Explanation. A declaration
on oath under this sub-rule shall be contained in the Statement of Truth as set
out in the Appendix.
(4)
In case of urgent filings, the plaintiff may
seek leave to rely on additional documents, as part of the above declaration on
oath and subject to grant of such leave by Court, the plaintiff shall file such
additional documents in Court, within thirty days of filing the suit, along
with a declaration on oath that the plaintiff has produced all documents in its
power, possession, control or custody, pertaining to the facts and
circumstances of the proceedings initiated by the plaintiff and that the
plaintiff does not have any other documents, in its power, possession, control
or custody.
(5)
The plaintiff shall not be allowed to rely on
documents, which were in the plaintiff’s power, possession, control or custody
and not disclosed along with plaint or within the extended period set out
above, save and except by leave of Court and such leave shall be granted only
upon the plaintiff establishing reasonable cause for non-disclosure along with
the plaint.
(6)
The plaint shall set out details of
documents, which the plaintiff believes to be in the power, possession, control
or custody of the defendant and which the plaintiff wishes to rely upon and
seek leave for production thereof by the said defendant.
(7)
The defendant shall file a list of all
documents and photocopies of all documents, in its power, possession, control
or custody, pertaining to the suit, along with the written statement or with
its counter- claim if any, including;
(a)
the documents referred to and relied on by
the defendant in the written statement;
(b)
the documents relating to any matter in
question in the proceeding in the power, possession, control or custody of the
defendant, irrespective of whether the same is in support of or adverse to the
defendant’s defence;
(c)
nothing in this Rule shall apply to documents
produced by the defendants and relevant only––
(i)
for the cross-examination of the plaintiff’s
witnesses,
(ii)
in answer to any case set up by the plaintiff
subsequent to the filing of the plaint, or
(iii)
handed over to a witness merely to refresh
his memory.
(8)
The list of documents filed with the written
statement or counterclaim shall specify whether the documents, in the power,
possession, control or custody of the defendant, are originals, office copies
or photocopies and the list shall also set out in brief, details of parties to
each document being produced by the defendant, mode of execution, issuance or
receipt and line of custody of each document.
(9)
The written statement or counterclaim shall
contain a declaration on oath made by the deponent that all documents in the
power, possession, control or custody of the defendant, save and except for
those set out in sub-rule (7) (c) (iii) pertaining to the facts and
circumstances of the proceedings initiated by the plaintiff or in the
counterclaim, have been disclosed and copies thereof annexed with the written
statement or counterclaim and that the defendant does not have in its power,
possession, control or custody, any other documents.
(10)
Save and except for sub-rule (7) (c) (iii),
defendant shall not be allowed to rely on documents, which were in the
defendant’s power, possession, control or custody and not disclosed along with
the written statement or counterclaim, save and except by leave of Court and
such leave shall be granted only upon the defendant establishing reasonable
cause for non-disclosure along with the written statement or counterclaim.
(11)
The written statement or counterclaim shall
set out details of documents in the power, possession, control or custody of
the plaintiff, which the defendant wishes to rely upon and which have not been
disclosed with the plaint, and call upon the plaintiff to produce the same.
(12)
Duty to disclose documents, which have come to
the notice of a party, shall continue till disposal of the suit.
Rule - 2. Discovery by interrogatories.
(1)
In any suit the plaintiff or defendant by
leave of the court may deliver interrogatories in writing for the examination
of the opposite parties or any one or more of such parties, and such
interrogatories when delivered shall have a note at the foot thereof stating
which of such interrogatories each of such persons is required to answer:
Provided that no party shall
deliver more than one set of interrogatories to the same party without an order
for that purpose:
Provided further that
interrogatories which do not relate to any matters in question in the suit
shall be deemed irrelevant, notwithstanding that they might be admissible on
the oral cross-examination of a witness.
(2)
On an application for leave to deliver
interrogatories, the particular interrogatories proposed to be delivered shall
be submitted to the court, and that court shall decide within seven days from
the day of filing of the said application, in deciding upon such application,
the court shall take into account any offer, which may be made by the party
sought to be interrogated to deliver particulars, or to make admissions, or to
produce documents relating to the matters in question, or any of them, and
leave shall be given as to such only of the interrogatories submitted as the
court shall consider necessary either for disposing fairly of the suit or for
saving costs.
(3)
In adjusting the costs of the suit inquiry
shall at the instance of any party be made into the propriety of exhibiting
such interrogatories, and if it is the opinion of the taxing officer or of the
court, either with or without an application for inquiry, that such
interrogatories have been exhibited unreasonably, vexatiously, or at improper
length, the costs occasioned by the said interrogatories and the answers
thereto shall be paid in any event by the party in fault.
(4)
Interrogatories shall be in the form provided
in Form No. 2 in Appendix C to the Code of Civil Procedure, 1908, (5 of 1908)
with such variations as circumstances may require.
(5)
Where any party to a suit is a corporation or
a body of persons, whether incorporated or not, empowered by law to sue or be
sued, whether in its own name or in the name of any officer of other person,
any opposite party may apply for an order allowing him to deliver
interrogatories to any member or officer of such corporation or body, and an
order may be made accordingly.
(6)
Any objection to answering any interrogatory
on the ground that it is scandalous or irrelevant or not exhibited bona fide
for the purpose of the suit, or that the matters inquired into are not
sufficiently material at that stage, or on the ground of privilege or any other
ground may be taken in the affidavit in answer.
(7)
Any interrogatories may be set aside on the
ground that they have been exhibited unreasonably or vexatiously, or struck out
on the ground that they are prolix, oppressive, unnecessary or scandalous and
any application for this purpose may be made within seven days after service of
the interrogatories.
(8)
Interrogatories shall be answered by
affidavit to be filed within ten days, or within such other time as the court
may allow.
(9)
An affidavit in answer to interrogatories
shall be in the form provided in Form No. 3 in Appendix C to the Code of Civil
Procedure, 1908, (5 of 1908), with such variations as circumstances may
require.
(10)
No exceptions shall be taken to any affidavit
in answer, but the sufficiency or otherwise of any such affidavit objected to
as insufficient shall be determined by the court.
(11)
Where any person interrogated omits to
answer, or answers insufficiently, the party interrogating may apply to the
court for an order requiring him to answer, or to answer further, as the case
may be, and an order may be made requiring him to answer, or to answer further,
either affidavit or by viva voce examination, as the court may direct.
Rule - 3. Inspection.
(1)
All parties shall complete inspection of all
documents disclosed within thirty days of the date of filing of the written
statement or written statement to the counterclaim, whichever is later. The
Court may extend this time limit upon application at its discretion, but not
beyond thirty days in any event.
(2)
Any party to the proceedings may seek
directions from the Court, at any stage of the proceedings, for inspection or
production of documents by the other party, of which inspection has been
refused by such party or documents have not been produced despite issuance of a
notice to produce.
(3)
Order in such application shall be disposed
of within thirty days of filing such application, including filing replies and
rejoinders (if permitted by Court) and hearing.
(4)
If the above application is allowed,
inspection and copies thereof shall be furnished to the party seeking it,
within five days of such order.
(5)
No party shall be permitted to rely on a
document, which it had failed to disclose or of which inspection has not been
given, save and except with leave of Court.
(6)
The Court may impose exemplary costs against
a defaulting party, who wilfully or negligently failed to disclose all
documents pertaining to a suit or essential for a decision therein and which
are in their power, possession, control or custody or where a Court holds that
inspection or copies of any documents had been wrongfully or unreasonably
withheld or refused.
Rule - 4. Admission and denial of documents.
(1)
Each party shall submit a statement of
admissions or denials of all documents disclosed and of which inspection has
been completed, within fifteen days of the completion of inspection or any
later date as fixed by the Court.
(2)
The statement of admissions and denials shall
set out explicitly, whether such party was admitting or denying:
(a)
correctness of contents of a document;
(b)
existence of a document;
(c)
execution of a document;
(d)
issuance or receipt of a document;
(e)
custody of a document.
Explanation. A statement of
admission or denial of the existence of a document made in accordance with
sub-rule (2) (b) shall include the admission or denial of the contents of a
document.
(3)
Each party shall set out reasons for denying
a document under any of the above grounds and bare and unsupported denials
shall not be deemed to be denials of a document and proof of such documents may
then be dispensed with at the discretion of the Court.
(4)
Any party may however submit bare denials for
third party documents of which the party denying does not have any personal
knowledge of, and to which the party denying is not a party to in any manner
whatsoever.
(5)
An Affidavit in support of the statement of
admissions and denials shall be filed confirming the correctness of the
contents of the statement.
(6)
In the event that the Court holds that any
party has unduly refused to admit a document under any of the above criteria, –
costs (including exemplary costs) for deciding on admissibility of a document
may be imposed by the Court on such party.
(7)
The Court may pass orders with respect to
admitted documents including for waiver of further proof thereon or rejection
of any documents.
Rule - 5. Production of documents.
(1)
Any party to a proceeding may seek or the
Court may order, at any time during the pendency of any suit, production by any
party or person, of such documents in the possession or power of such party or
person, relating to any matter in question in such suit.
(2)
Notice to produce such document shall be
issued in the Form provided in Form No. 7 in Appendix C to the Code of Civil
Procedure, 1908 (5 of 1908).
(3)
Any party or person to whom such notice to
produce is issued shall be given not less than seven days and not more than
fifteen days to produce such document or to answer to their inability to
produce such document.
(4)
The Court may draw an adverse inference
against a party refusing to produce such document after issuance of a notice to
produce and where sufficient reasons for such non-production are not given and
order costs.
Rule - 6. Electronic records.
(1)
In case of disclosures and inspection of
Electronic Records (as defined in the Information Technology Act, 2000 (21 of
2000)), furnishing of printouts shall be sufficient compliance of the above
provisions.
(2)
At the discretion of the parties or where
required (when parties wish to rely on audio or video content), copies of
electronic records may be furnished in electronic form either in addition to or
in lieu of printouts.
(3)
Where Electronic Records form part of
documents disclosed, the declaration on oath to be filed by a party shall
specify.
(a)
the parties to such Electronic Record;
(b)
the manner in which such electronic record
was produced and by whom;
(c)
the dates and time of preparation or storage
or issuance or receipt of each such electronic record;
(d)
the source of such electronic record and date
and time when the electronic record was printed;
(e)
in case of email ids, details of ownership,
custody and access to such email ids;
(f)
in case of documents stored on a computer or
computer resource (including on external servers or cloud), details of
ownership, custody and access to such data on the computer or computer
resource;
(g)
deponent’s knowledge of contents and
correctness of contents;
(h)
whether the computer or computer resource
used for preparing or receiving or storing such document or data was
functioning properly or in case of malfunction that such malfunction did not
affect the contents of the document stored;
(i)
that the printout or copy furnished was taken
from the original computer or computer resource.
(4)
The parties relying on printouts or copy in
electronic form, of any electronic records, shall not be required to give
inspection of electronic records, provided a declaration is made by such party
that each such copy, which has been produced, has been made from the original
electronic record.
(5)
The Court may give directions for
admissibility of Electronic Records at any stage of the proceedings.
(6)
Any party may seek directions from the Court
and the Court may of its motion issue directions for submission of further
proof of any electronic record including metadata or logs before admission of
such electronic record.
Rule - 7. Certain provisions of the Code of
Civil Procedure, 1908 not to apply.
For avoidance of doubt, it
is hereby clarified that Order XIII Rule 1, Order VII Rule 14 and Order VIII
Rule 1A of the Code of Civil Procedure, 1908 (5 of 1908) shall not apply to
suits or applications before the Commercial Divisions of High Court or
Commercial Courts.]
STATE
AMENDMENT
Jammu and Kashmir and Ladakh
(UTs).
For Order XI of the Code,
substitute the following Order, namely.
“ORDER
XI
DISCLOSURE,
DISCOVERY AND INSPECTION OF DOCUMENTS
1. Disclosure and discovery
of documents.
(1)
Plaintiff shall file a list of all documents
and photocopies of all documents, in its power, possession, control or custody,
pertaining to the suit, along with the plaint, including:
(a)
documents referred and relied on by the
plaintiff in the plaint;
(b)
documents relating to any matter in question
in the proceedings, in the power, possession, control or custody of the
plaintiff, as on the date of filing the plaint, irrespective of whether the
same is in support of or adverse to the plaintiffs case; and
(c)
nothing in this rule shall apply to documents
produced by plaintiffs and relevant only–
(i)
for the cross-examination of the defendant‘s
witnesses, or
(ii)
in answer to any case setup by the defendant
subsequent to the filing of the plaint, or
(iii)
handed over to a witness merely to refresh
his memory.
(2)
The list of documents filed with the plaint
shall specify whether the documents in the power, possession, control or
custody of the plaintiff are originals, office copies or photocopies and the
list shall also set out in brief, details of parties to each document, mode or
execution, issuance or receipt and line of custody of each document.
(3)
The plaint shall contain a declaration on
oath from the plaintiff that all documents in the power, possession, control,
or custody of the plaintiff, pertaining to the facts and circumstances of the
proceedings initiated by him have been disclosed and copies thereof annexed
with the plaint, and that the plaintiff does not have any other documents in
its power, possession, control or custody.
Explanation. A declaration
on oath under this sub-rule shall be contained in the Statement of Truth as set
out in the Appendix I.
(4)
In case of urgent filings, the plaintiff may
seek leave to rely on additional documents, as part of the above declaration on
oath and subject to grant of such leave by court, the plaintiff shall file such
additional documents in court, within thirty days of filing the suit, along
with a declaration on oath that the plaintiff has produced all documents in its
power, possession, control or custody, pertaining to the facts and
circumstances of the proceedings initiated by the plaintiff and that the
plaintiff does not have any other documents, in its power, possession, control
or custody.
(5)
The plaintiff shall not be allowed to rely on
documents, which were in the plaintiff’s power, possession, control or custody
and not disclosed along with plaint or within the extended period set out
above, save and except by leave of court and such leave shall be granted only
upon the plaintiff establishing reasonable cause for non-disclosure along with
the plaint.
(6)
The plaint shall set out details of
documents, which the plaintiff believes to be in the power, possession, control
or custody or the defendant and which the plaintiff wishes to rely upon and
seek leave for production thereof by the said defendant.
(7)
The defendant shall file a list of all
documents and photocopies of all documents, in its power, possession, control
or custody, pertaining to the suit, along with the written statement or with
its counter-claim if any, including–
(a)
the documents referred to and relied on by
the defendant in the written statement;
(b)
the documents relating to any matter in
question in the proceeding in the power, possession, control or custody of the
defendant, irrespective of whether the same is in support of or adverse to the
defendant’s defense;
(c)
nothing in this rule shall apply to documents
produced by the defendants and relevant only–
(i)
for the cross-examination of the plaintiff‘s
witnesses;
(ii)
in answer to any case setup by the plaintiff
subsequent to the filing of the plaint; or
(iii)
handed over to a witness merely to refresh
his memory.
(8)
The list of documents filed with the written
statement or counter-claim shall specify whether the documents, in the power,
possession, control or custody of the defendant, are originals, office copies
or photocopies and the list shall also set out in brief, details of parties to
each document being produced by the defendant, mode of execution, issuance or
receipt and line of custody of each document.
(9)
the written statement or counter-claim shall
contain a declaration on oath made by the deponent that all documents in the
power, possession, control or custody of the defendant, save and except for
those set out in sub-rule (7) (c) (iii), pertaining to the facts and
circumstances of the proceedings initiated by the plaintiff or in the
counter-claim, have been disclosed and copies thereof annexed with the written
statement or counter-claim and that the defendant does not have in its power,
possession, control or custody, any other documents.
(10)
Save and except for sub-rule (7) (c) (iii),
defendant shall not be allowed to rely on documents, which were in the defendant‘s
power, possession, control or custody and not disclosed along with the written
statement or counter-claim, save and except by leave of court and such leave
shall be granted only upon the defendant establishing reasonable cause for
non-disclosure along with the written statement or counter-claim.
(11)
The written statement or counter-claim shall
set out details of documents in the power, possession, control or custody of
the plaintiff, which the defendant wishes to rely upon and which have not been disclosed
with the plaint, and call upon the plaintiff to produce the same.
(12)
Duty to disclose documents, which have come
to the notice of a party, shall continue till disposal of the suit.
2. Discovery by
interrogatories.
(1)
In any suit the plaintiff or defendant by
leave of the court may deliver interrogatories in writing for the examination
of the opposite parties or anyone or more of such parties, and such
interrogatories when delivered shall have a note at the foot thereof stating
which of such interrogatories each of such persons is required to answer:
Provided that no party shall
deliver more than one set of interrogatories to the same party without an order
for that purpose:
Provided further that
interrogatories which do not relate to any matters in question in the suit
shall be deemed irrelevant, notwithstanding that they might be admissible on
the oral cross-examination of a witness.
(2)
On an application for leave to deliver
interrogatories, the particular interrogatories proposed to be delivered shall
be submitted to the court, and that court shall decide within seven days from
the day of filing of the said application, in deciding upon such application,
the court shall take into account any offer, which may be made by the party
sought to be interrogated to deliver particulars, or to make admissions, or to
produce documents relating to the matters in question, or any of them, and
leave shall be given as to such only of the interrogatories submitted as the
court shall consider necessary either for disposing fairly of the suit or for
saving costs.
(3)
In adjusting the costs of the suit inquiry
shall at the instance of any party be made into the propriety of exhibiting
such interrogatories, and if it is the opinion of the taxing officer or of the
court, either with or without an application for inquiry, that such
interrogatories have been exhibited unreasonably, vexatiously, or at improper
length, the costs occasioned by the said interrogatories and the answers
thereto shall be paid in any event by the party in fault.
(4)
Interrogatories shall be in the form provided
in Form No. 2 in Appendix C to the Code of Civil Procedure, 1908, with such
variations as circumstances may require.
(5)
Where any party to a suit is a corporation or
a body of persons, whether incorporated or not, empowered by law to sue or be
sued, whether in its own name or in the name of any officer of other person,
any opposite party may apply for any order allowing him to deliver
interrogatories to any member or officer of such corporation or body, and an
order may be made accordingly.
(6)
Any objection to answering any interrogatory
on the ground that it is scandalous or irrelevant or not exhibited bona fide
for the purpose of the suit, or that the matters required into are not
sufficiently material at that stage, or on the ground of privilege or any other
ground may be taken in the affidavit in answer.
(7)
Any interrogatories may be set aside on the
ground that they have been exhibited unreasonably or vexatiously, or struck out
on the ground that they are prolix, oppressive, unnecessary or scandalous and
any application for this purpose may be made within seven days after service of
the interrogatories.
(8)
Interrogatories shall be answered by
affidavit to be filed within ten days, or within such other time as the court
may allow.
(9)
An affidavit in answer to interrogatories
shall be in the form provided in Form No. 3 in Appendix C to the Code of Civil
Procedure, 1908, with such variations as circumstances may require.
(10)
No exceptions shall be taken to any affidavit
in answer, but the sufficiency or otherwise of any such affidavit objected to
as insufficient shall be determined by the court.
(11)
Where any person interrogated omits to
answer, or answers insufficiently, the party interrogating may apply to the
court for an order requiring him to answer, or to answer further, as the case
may be, and an order may be made requiring him to answer, or to answer further,
either affidavit or by viva voce examination, as the court may direct.
3. Inspection.
(1)
All parties shall complete inspection of all
documents disclosed within thirty days of the date of filing of the written
statement or written statement to the counter-claim, whichever is later, the
court may extend this time limit upon application at its discretion, but not beyond
thirty days in any event.
(2)
Any party to the proceedings may seek
directions from the court, at any stage of the proceedings, for inspection or
production of documents by the other party, of which inspection has been
refused by such party or documents have not been produced despite issuance of a
notice to produce.
(3)
Order in such application shall be disposed
of within thirty days of filing such application, including filing replies and
rejoinders (if permitted by court) and hearing.
(4)
If the above application is allowed,
inspection and copies thereof shall be furnished to the party seeking it,
within five days of such order.
(5)
No party shall be permitted to rely on a
document, which it had failed to disclose or of which inspection has not been
given, save and except with leave of court.
(6)
The Court may impose exemplary costs against
a defaulting party, who willfully or negligently failed to disclose all
documents pertaining to a suit or essential for a decision therein and which
are in their power, possession, control or custody or where a court holds that
inspection or copies of any documents had been wrongfully or unreasonably
withheld or refused.
4. Admission and denial of
documents.
(1)
Each party shall submit a statement of
admissions or denials of all documents disclosed and of which inspection has
been completed, within fifteen days of the completion of inspection or any
later date as fixed by the court.
(2)
The statement of admissions and denials shall
set out explicitly, whether such party was admitting or denying:
(a)
correctness of contents of a document;
(b)
existence of a document;
(c)
execution of a document;
(d)
issuance or receipt of a document;
(e)
custody of a document.
Explanation. A statement of
admission or denial of the existence of a document made in accordance with
clause (b) of sub-rule (2) shall include the admission or denial of the
contents of a document.
(3)
Each party shall set out reasons for denying
a document under any of the above grounds and bare and unsupported denials
shall not be deemed to be denials of a document and proof of such documents may
then be dispensed with at the direction of the court.
(4)
Any party may however submit bare denials for
third party documents of which the party denying does not have any personal
knowledge of, and to which the party denying is not a party to in any manner
whatsoever.
(5)
An affidavit in support of the statement of
admissions and denials shall be filed confirming the correctness of the
contents of the statement.
(6)
In the event that the court holds that any party
has unduly refused to admit a document under any of the above criteria, costs
(including exemplary costs) for deciding on admissibility of a document may be
imposed by the court on such party.
(7)
The court may pass orders with respect to
admitted documents including for waiver of further proof thereon or rejection
of any documents.
5. Production of documents.
(1)
Any party to a proceeding may seek or the
court may order, at any time during the pendency of any suit, production by any
party or person, of such documents in the possession or power of such party or
person, relating to any matter in question in such suit.
(2)
Notice to produce such document shall be
issued in the form provided in Form No. 7 in Appendix C to the Code of Civil
Procedure, 1908 (5 of 1908).
(3)
Any party or person to whom such notice to
produce is issued shall be given not less than seven days and not more than
fifteen days to produce such document or to answer to their inability to
produce such document.
(4)
The court may draw an adverse inference
against a party refusing to produce such document after issuance of a notice to
produce and where sufficient reasons for such non-production are not given and
order costs.
6. Electronic Records.
(1)
In case of disclosures and inspection of
electronic records as defined in the Information Technology Act, 2000 (21 of
2000), furnishing of printouts shall be sufficient compliance of the above
provisions.
(2)
At the discretion of the parties or where
required (when parties wish to rely on audio or video content), copies of
electronic records may be furnished in electronic form either in addition to or
in lieu of printouts.
(3)
Where electronic records form part of
documents disclosed, the declaration on oath to be filed by a party shall
specify –
(a)
the parties to such electronic record;
(b)
the manner in which such electronic record
was produced and by whom;
(c)
the dates and time of preparation or storage
or issuance or receipt of each such electronic record;
(d)
the source of such electronic record and date
and time when the electronic record was printed;
(e)
in case of e-mail ids, details of ownership,
custody and access to such e-mail ids;
(f)
in case of documents stored on a computer or
computer resource (including on external servers or cloud), details of
ownership, custody and access to such data on the computer or computer
resource;
(g)
deponent‘s knowledge of contents and
correctness of contents;
(h)
whether the computer or computer resource
used for preparing or receiving or storing such document or data was
functioning properly or in case of malfunction that such malfunction did not
affect the contents of the document stored;
(i)
that the printout or copy furnished was taken
from the original computer or computer resource.
(4)
The parties relying on printouts or copy in
electronic form, of any electronic records, shall not be required to give
inspection of electronic records, provided a declaration is made by such party
that each such copy, which has been produced, has been made from the original
Electronic Records.
(5)
The court may give directions for
admissibility of electronic records at any stage of the proceedings.
(6)
Any party may seek directions from the court
and the court may of its motion issue directions for submission of further
proof of any electronic record including metadata or logs before admission of
such electronic record.
[Vide the Jammu and Kashmir
Reorganisation (Adaptation of Central Laws) Order, 2020, notification No. S.O.
1123(E) dated (18-3-2020) and vide Union Territory of Ladakh Reorganisation
(Adaptation of Central Laws) Order, 2020, Notification No. S.O. 3774(E), dated
(23-10-2020)].
ORDER XII ADMISSIONS
Rule - 1. Notice of admission of case.
Any party to a suit may give
notice, by his pleading, or otherwise in writing, that he admits the truth of
the whole or any part of the case of any other party.
Rule - 2. Notice to admit documents.
Either party may call upon
the other party [to
admit, within [seven]
days from the date of service of the notice any document,] saving all
exceptions; and in case of refusal or neglect to admit, after such notice, the
costs of proving any such document shall be paid by the party so neglecting or
refusing, whatever the result of the suit may be, unless the Court otherwise
directs; and no costs of proving any document shall be allowed unless such
notice is given, except where the omission to give the notice is, in the
opinion of the Court, a saving of expense.
Rule - [2A.
Document to be deemed to be admitted if not denied after service of notice to
admit documents.
(1)
Every document which a party is called upon
to admit, if not denied specifically or by necessary implication, or stated to
be not admitted in the pleading of that party or in his reply to the notice to
admit documents, shall be deemed to be admitted except as against a person
under a disability:
Provided that the Court may,
in its discretion and for reasons to be recorded, require any document so
admitted to be proved otherwise than by such admission.
(2)
Where a party unreasonably neglects or
refuses to admit a document after the service on him of the notice to admit
documents, the Court may direct him to pay costs to the other party by way of
compensation.]
Rule - 3. Form of notice.
A notice to admit documents
shall be in Form No. 9 in Appendix C, with such variations as circumstances may
require.
Rule - [3A.
Power of Court to record admission.
Notwithstanding that no
notice to admit documents has been given under rule 2, the Court may, at any
stage of the proceeding before it, of its own motion, call upon any party to
admit any document and shall, in such a case, record whether the party admits
or refuses or neglects to admit such document.]
Rule - 4. Notice to admit acts.
Any party, may, by notice in
writing, at any time not later than nine days before the day fixed for the
hearing, call on any other party to admit, for the purposes of the suit only,
any specific fact or facts, mentioned in such notice. And in case of refusal or
neglect to admit the same within six days after service of such notice, or
within such further time as may be allowed by the Court, the costs of proving
such fact or facts shall be paid by the party so neglecting or refusing,
whatever the result of the suit may be, unless the Court otherwise directs:
Provided that any admission
made in pursuance of such notice is to be deemed to be made only for the
purposes of the particular suit, and not as an admission to be used against the
party on any other occasion or in favour of any person other than the party
giving the notice:
[* *
* * *]
Rule - 5. Form of admissions.
A notice to admit facts
shall be in Form No. 10 in Appendix C, and admission of facts shall be in Form
No. 11 in Appendix C, with such variations as circumstances may require.
Rule - [6.
Judgment on admissions.
(1)
Where admissions of fact have been made
either in the pleading or otherwise; whether orally or in writing, the Court
may at any stage of the suit, either on the application of any party or of its
own motion and without waiting for the determination of any other
question-between the parties, make such order or give such judgment as it may
think fit, having regard to such admissions.
(2)
Whenever a judgment is pronounced under
sub-rule (1) a decree shall be drawn up in accordance with the judgment and the
decree shall bear the date on which the judgment was pronounced.]
Rule - 7. Affidavit of signature.
An affidavit of the pleader
or his clerk, of the due signature of any admissions made in pursuance of any
notice to admit documents or facts, shall be sufficient evidenced of such
admissions, if evidence thereof is required.
Rule - 8. Notice to produce documents.
Notice to produce documents
shall be in Form No. 12 in Appendix C, with such variations as circumstances
may require. An affidavit of the pleader, or his clerk, of the Service of any
notice to produce, and of the time when it was served, with a copy of the
notice to produce, shall in all cases be sufficient evidence of the service of
the notice, and of the time when it was served.
Rule - 9. Costs.
If a notice to admit or
produce specifies documents which are not necessary, the costs occasioned
thereby shall be borne by the party giving such notice.
ORDER XIII PRODUCTION, IMPOUNDING AND RETURN OF DOCUMENTS
Rule - [1. Original
documents to be produced at or before the settlement of issues.
(1)
The parties or their pleader shall produce on
or before the settlement of issues, all the documentary evidence in original
where the copies thereof have been filed along with plaint or written
statement.
(2)
The Court shall receive the documents so
produced:
Provided that they are
accompanied by an accurate list thereof prepared in such form as the High Court
directs.
(3)
Nothing in sub-rule (1) shall apply to
documents-
(a)
produced for the cross-examination of the
witnesses of the other party; or
(b)
handed over to a witness merely to refresh
his memory.]
Rule - 2. [Effect
of non-production of documents.]
[* * *]
Rule - 3. Rejection of irrelevant or
inadmissible documents.
The Court may at any stage
of the suit reject any document which it considers irrelevant or otherwise
inadmissible, recording the grounds of such rejection.
Rule - 4. Endorsements on documents admitted
in evidence.
(1)
Subject to the provisions of the next
following sub-rule, there shall be endorsed on every document which has been
admitted in evidence in the suit the following particulars, namely:
(a)
the number and title of the suit,
(b)
the name of the person producing the
document,
(c)
the date on which it was produced, and
(d)
a statement of its having been so admitted, and
the endorsement shall be signed or initialled by the Judge.
(2)
Where a document so admitted is an entry in a
book, account or record, and a copy thereof has been substituted for the
original under the next following rule, the particulars aforesaid shall be
endorsed on the copy and the endorsement thereon shall be signed or initialled
by the Judge.
Rule - 5. Endorsements on copies of admitted
entries in books, accounts and records.
(1)
Save in so far as is otherwise provided by
the Bankers' Books Evidence Act, 1891 (XVIII of 1891) where a document admitted
in evidence in the suit is an entry in a letter-book or a shop-book or other
account in current use, the party on whose behalf the book or account is
produced may furnish a copy of the entry.
(2)
Where such a document is an entry in a public
record produced from a public office or by a public officer, or an entry in a
book or account belonging to a person other than a party on whose behalf the
book or account is produced, the Court may require a copy of the entry to be
furnished;
(a)
where the record, book or account is produced
on behalf of a party, then by that party, or
(b)
where the record, book or account is produced
in obedience to an order of the Court acting of its own motion, then by either
or any party.
(3)
Where a copy of an entry is furnished under the
foregoing provisions of this rule, the Court shall, after causing the copy to
be examined, compared and certified in manner mentioned in rule 17 of Order
VII, mark the entry and cause the book, account or record in which it occurs to
be returned to the person producing it.
Rule - 6. Endorsements on documents rejected
an inadmissible in evidence.
Where a document relied on
as evidence by either party is considered by the Court to be inadmissible in
evidence, there shall be endorsed thereon the particulars mentioned in clauses
(a), (b) and (c) of rule 4, sub-rule (1) together with a statement of its
having been rejected, and the endorsement shall be signed or initialled by the
Judge.
Rule - 7. Recording of admitted and return of
rejected documents.
(1)
Every documents which has been admitted in
evidence, or a copy thereof where a copy has been substituted for the original
under rule 5, shall form part of the record of the suit.
(2)
Documents not admitted in evidence shall not
form part of the record and shall be returned to the persons respectively
producing them.
Rule - 8. Court may order any document to be
impounded.
Notwithstanding anything
contained in rule 5 or rule 7 of this Order or in rule 17 of Order VII, the
Court may, if it sees sufficient cause, direct any document or book produced
before it in any suit to be impounded and kept in the custody of an officer of
the Court, for such period and subject to such conditions as the Court thinks
fit.
Rule - 9. Return of admitted documents.
(1)
Any person, whether a party to the suit or
not, desirous of receiving back any documents produced by him in the suit and
placed on the record shall, unless the document is impounded under rule 8, be
entitled to receive back the same,
(a)
where the suit is one in which an appeal is not
allowed, when the suit has been disposed of, and
(b)
where the suit is one in which an appeal is
allowed, when the Court is satisfied that the time for preferring an appeal has
elapsed and that no appeal has been preferred or, if an appeal has been preferred,
when the appeal has been disposed of:
[Provided
that a document may be returned at any time earlier then that prescribed by
this rule if the person applying therefor-
(a)
delivers to the proper officer for being
substituted for the original,
(i)
in the case of a party to the suit, a
certified copy, and
(ii)
in the case of any other person, an ordinary
copy which has been examined, compared and certified in the manner mentioned in
sub-rule (2) of rule 17 of Order VII, and
(b)
undertakes to produce the original, if required
to do so:]
Provided also, that no
document shall be returned with, by force of the decree, has become wholly void
or useless.
(2)
On the return of a document admitted in
evidence, a receipt shall be given by the person receiving it.
Rule - 10. Court may send for papers from its
own records or from other Courts.
(1)
The Court may of its own motion, and may in
its discretion upon the application of any of the parties to a suit, send for,
either from its own records or from any other Court, the record of any other
suit or proceeding, and inspect the same.
(2)
Every application made under this rule shall
(unless the Court otherwise directs) be supported by an affidavit showing how
the record is material to the suit in which the application is made, and that
the applicant cannot without unreasonable delay or expense obtain a duly
authenticated copy of the record or of such portion thereof as the applicant
requires, or that the production of the original is necessary for the purposes
of justice.
(3)
Nothing contained in this rule shall be
deemed to enable the Court to use in evidence any document which under the law
of evidence would be inadmissible in the suit.
Rule - 11. Provisions as to documents applied
to material objects.
The provisions therein
contained as to documents shall, so far as may be, apply to all other material
objects producible as evidence.
[ORDER XIII-A SUMMARY JUDGMENT
Rule - 1. Scope of and classes of suits to which this Order applies.
(1)
This Order sets out the procedure by which
Courts may decide a claim pertaining to any Commercial Dispute without
recording oral evidence.
(2)
For the purposes of this Order, the word
“claim” shall include-
(a)
part of a claim;
(b)
any particular question on which the claim
(whether in whole or in part) depends; or
(c)
a counterclaim, as the case may be.
(3)
Notwithstanding anything to the contrary, an
application for summary judgment under this Order shall not be made in a suit
in respect of any Commercial Dispute that is originally filed as a summary suit
under Order XXXVII.
Rule - 2. Stage for application for summary
judgment.
An applicant may apply for
summary judgment at any time after summons has been served on the defendant:
Provided that, no
application for summary judgment may be made by such applicant after the Court
has framed the issues in respect of the suit.
Rule - 3. Grounds for summary judgment.
The Court may give a summary
judgment against a plaintiff or defendant on a claim if it considers that––
(a)
the plaintiff has no real prospect of
succeeding on the claim or the defendant has no real prospect of successfully
defending the claim, as the case may be; and
(b)
there is no other compelling reason why the
claim should not be disposed of before recording of oral evidence.
Rule - 4. Procedure.
(1)
An application for summary judgment to a
Court shall, in addition to any other matters the applicant may deem relevant,
include the matters set forth in sub-clauses (a) to (f) mentioned hereunder:-
(a)
the application must contain a statement that
it is an application for summary judgment made under this Order;
(b)
the application must precisely disclose all
material facts and identify the point of law, if any;
(c)
in the event the applicant seeks to rely upon
any documentary evidence, the applicant must,-
(i)
include such documentary evidence in its
application, and
(ii)
identify the relevant content of such
documentary evidence on which the applicant relies;
(d)
the application must state the reason why
there are no real prospects of succeeding on the claim or defending the claim,
as the case may be;
(e)
the application must state what relief the
applicant is seeking and briefly state the grounds for seeking such relief.
(2)
Where a hearing for summary judgment is
fixed, the respondent must be given at least thirty days’ notice of:-
(a)
the date fixed for the hearing; and
(b)
the claim that is proposed to be decided by
the Court at such hearing.
(3)
The respondent may, within thirty days of the
receipt of notice of application of summary judgment or notice of hearing
(whichever is earlier), file a reply addressing the matters set forth in
clauses
(a)
to (f) mentioned hereunder in addition to any
other matters that the respondent may deem relevant:
(a)
the reply must precisely-
(i)
disclose all material facts;
(ii)
identify the point of law, if any; and
(iii)
state the reasons why the relief sought by
the applicant should not be granted;
(b)
in the event the respondent seeks to rely
upon any documentary evidence in its reply, the respondent must-
(i)
include such documentary evidence in its
reply; and
(ii)
identify the relevant content of such documentary
evidence on which the respondent relies;
(c)
the reply must state the reason why there are
real prospects of succeeding on the claim or defending the claim, as the case
may be;
(d)
the reply must concisely state the issues
that should be framed for trial;
(e)
the reply must identify what further evidence
shall be brought on record at trial that could not be brought on record at the
stage of summary judgment; and
(f)
the reply must state why, in light of the
evidence or material on record if any, the Court should not proceed to summary
judgment.
Rule - 5. Evidence for hearing of summary
judgment.
(1)
Notwithstanding anything in this Order, if
the respondent in an application for summary judgment wishes to rely on
additional documentary evidence during the hearing, the respondent must:
(a)
file such documentary evidence; and
(b)
serve copies of such documentary evidence on
every other party to the application at least fifteen days prior to the date of
the hearing.
(2)
Notwithstanding anything in this Order, if
the applicant for summary judgment wishes to rely on documentary evidence in
reply to the defendant’s documentary evidence, the applicant must:
(a)
file such documentary evidence in reply; and
(b)
serve a copy of such documentary evidence on
the respondent at least five days prior to the date of the hearing.
(3)
Notwithstanding anything to the contrary,
sub-rules (1) and (2) shall not require documentary evidence to be:
(a)
filed if such documentary evidence has
already been filed; or
(b)
served on a party on whom it has already been
served.
Rule - 6. Orders that may be made by Court.
(1)
On an application made under this Order, the
Court may make such orders that it may deem fit in its discretion including the
following:
(a)
judgment on the claim;
(b)
conditional order in accordance with Rule 7
mentioned hereunder;
(c)
dismissing the application;
(d)
dismissing part of the claim and a judgment
on part of the claim that is not dismissed;
(e)
striking out the pleadings (whether in whole
or in part); or
(f)
further directions to proceed for case management
under Order XV-A.
(2)
Where the Court makes any of the orders as
set forth in sub-rule (1) (a) to (f), the Court shall record its reasons for
making such order.
Rule - 7. Conditional order.
(1)
Where it appears to the Court that it is
possible that a claim or defence may succeed but it is improbable that it shall
do so, the Court may make a conditional order as set forth in Rule 6 (1) (b).
(2)
Where the Court makes a conditional order, it
may:
(a)
make it subject to all or any of the
following conditions:
(i)
require a party to deposit a sum of money in
the Court;
(ii)
require a party to take a specified step in
relation to the claim or defence, as the case may be;
(iii)
require a party, as the case may be, to give
such security or provide such surety for restitution of costs as the Court
deems fit and proper;
(iv)
impose such other conditions, including
providing security for restitution of losses that any party is likely to suffer
during the pendency of the suit, as the Court may deem fit in its discretion;
and
(b)
specify the consequences of the failure to
comply with the conditional order, including passing a judgment against the
party that have not complied with the conditional order.
Rule - 8. Power to impose costs.
The Court may make an order
for payment of costs in an application for summary judgment in accordance with
the provisions of sections 35 and 35A of the Code.]
ORDER XIV SETTLEMENT OF ISSUES AND DETERMINATION OF SUIT ON ISSUES OF LAW OR ON ISSUES AGREED UPON
Rule - 1. Framing of issues.
(1)
Issues arise when a material proposition of
fact or law is affirmed by the one party and denied by the other.
(2)
Material propositions arc those propositions
of law or fact which a plaintiff must allege in order to show a right to sue or
a defendant must allege in order to constitute his defence.
(3)
Each material proposition affirmed by one
party and denied by the other shall form the subject of distinct issue.
(4)
Issues are of two kinds:
(a)
issues of fact,
(b)
issues of law.
(5)
At the first hearing of the suit the Court
shall, after reading the plaint and the written statements if any, and [after
examination under rule 2 of Order X and after hearing the parties or their
pleaders], ascertain upon what material propositions of fact or of law the
parties are at variance, and shall thereupon proceed to frame and record the
issues on which the right decision of the case appears to depend.
(6)
Nothing is this rule requires the Court to
frame and record issued where the defendant at the first hearing of the suit
makes no defence.
Rule - [2.
Court to pronounce judgment on all issues.
(1)
Notwithstanding that a case may be disposed
of on a preliminary issue, the Court shall, subject to the provisions of
sub-rule (2), pronounce judgment on all issues.
(2)
Where issues both of law and of fact arise in
the same suit, and the Court is of opinion that the case or any part thereof
may be disposed of on an issue of law only, it may try that issue first if the
issue relates to-
(a)
the jurisdiction of the Court, or
(b)
a bar to the suit created by any law for the
time being in force, and for that purpose may, if it thinks fit, postpone the
settlement of the other issues until after that issue has been determined, and
may deal with the suit in accordance with the decision on that issue.]
Rule - 3. Materials from which issues may be
framed.
The Court may frame the
issues from all or any of the following materials:
(a)
allegations made on oath by the parties, or
by any persons present on their behalf, or made by the pleaders of such
parties;
(b)
allegations made in the pleadings or in answers
to interrogatories delivered in the suit;
(c)
the contents of documents produced by either
party.
Rule - 4. Court may examine witnesses or
documents before framing issues.
Where the Court is of
opinion that the issues cannot be correctly framed without the examination of
some person not before the Court or without the inspection of some document
not, produced in the suit, it [may
adjourn the framing of issues to a day not later than seven days] and may
(subject to any law for the time being in force) compel the attendance of any
person or the production of any document by the person in whose possession or
power it is by summons or other process.
Rule - [5.
Power to amend and strike out, issues.
(1)
The Court may at any time before passing a
decree amend the issues or frame additional issues on such terms as it thinks
fit, and all such amendments or additional issues as may be necessary for
determining the matters in controversy between the parties shall be so made or
framed.
(2)
The Court may also, at any time before
passing a decree, strike out any issues that appear to it to be wrongly framed
or introduced.]
Rule - 6. Questions of fact or law may by
agreement be stated in form of issues.
(1)
Where the parties to a suit are agreed as to
the question of fact or of law to be decided between them, they may state the
same in the form of an issue, and enter into an agreement in writing that, upon
the finding of the Court in the affirmative or the negative or such issue,-
(a)
a sum of money specified in the agreement or to
be ascertained by the Court, or in such manner as the Court may direct, shall
be paid by one of the parties to the other of them, or that one of them be
declared entitled to some right or subject some liability specified in the
agreement;
(b)
some property specified in the agreement and
in dispute in the suit shall be delivered by one of the parties to the other of
them, or as that other may direct; or
(c)
one or more of the parties shall do or
abstain from doing some particular act specified in the agreement and relating
to the matter in dispute.
Rule - 7. Court, if satisfied that agreement
was executed in good faith, may pronounce judgment.
Where the Court is
satisfied, after making such inquiry as it deems proper,-
(a)
that the agreement was duly executed by the
parties,
(b)
that they have a substantial interest in the
decision of such question as aforesaid, and
(c)
that the same is fit to be tried and decided,
it shall proceed to record and try the issue and state its finding or decision
thereon in the same manner as if the issue had been framed by the Court;
and shall, upon the finding
or decision on such issue, pronounce judgment according to the terms of the
agreement; and, upon the judgment so pronounced, a decree shall follow.
State Amendment
Sikkim
Amendment
of Order XIV :-
In the First Schedule, in
Order XIV, for rule 5 (as it stood immediately before its omission by clause
(ii) of section 24 of the Code of Civil Procedure (Amendment) Act, 1999], the
following rule shall be substituted, namely:-
46 of
1999
Power
to amend, and strike out, issues.
“5. (1) The Court may at any time before passing a
decree amend the issues or frame additional issues on such terms as it thinks
fit, and all such amendments or additional issues as may be necessary for determining
the matters in controversy between the parties shall be so made or framed.
(2) The Court may also, at
any time before passing a decree, strike out any issues that appear to it to be
wrongly framed or introduced.”
[Vide Sikkim Act 22 of 2002]
[ORDER XV DISPOSAL OF THE SUIT AT THE FIRST HEARING
Rule - 1. Parties not at issue.
(1)
Where at the first hearing of a suit it
appears that the parties are not at issue on any question of law or of fact,
the Court may at once pronounce judgment.
Rule - 2. One of several defendants not at
issue.
[(1)
Where there are more defendants than one, and any one of the defendants is not
at issue with the plaintiff on any question of law or of fact, the Court may at
once pronounce judgment for or against such defendant and the suit shall
proceed only against the other defendants.]
[(2)
Whenever a judgment is pronounced under this rule, decree shall be drawn up in
accordance with such judgment and the decree shall bear the date on which the
judgment was pronounced.]
Rule - 3. Parties at issue.
(1)
Where the parties are at issue on some
question of law or of fact, and issues have been framed by the Court as
hereinbefore provided, if the Court is satisfied that no further argument or
evidence that the parties can at once adduce is required upon such of the
issues as may be sufficient for
the decision of the suit,
and that no injustice will result from proceeding with the suit forthwith, the
Court may proceed to determine such issues, and, if the finding thereon is
sufficient for the decision, may pronounce judgment accordingly, whether the
summons has been issued for the settlement of issues only or for the final
disposal of the suit:
Provided that, where the
summons has been issued for the settlement of issues only, the parties or their
pleaders are present and none of them objects.
(2)
Where the finding is not sufficient for the
decision, the Court shall postpone the further hearing of the suit, and shall
fix a day for the production of such further evidence, or for such further
argument as the case requires.
Rule - 4. Failure to produce evidence.
Where the summons has been
issued for the final disposal of the suit and either party fails without
sufficient cause to produce the evidence on which he relies, the Court may at
once pronounce judgment, or may, if it thinks fit, after framing and recording
issues, adjourn the suit for the production of such evidence as may be
necessary for its decision upon such issues.]
STATE
AMENDMENT
Uttar Pradesh
Amendment of Order XV. In
the First Schedule, in Order XV, for the existing rule 5, the following rule
shall be substituted, namely :-
“5.
Striking off defense on failure to deposit admitted rent, etc.-
(1)
In any suit by a lessor for the eviction of a
lessee after the determination of his lease and for the recovery from him of
rent or compensation for use and occupation, the defendant shall, at or before
the first hearing of the suit, deposit the entire amount admitted by him to be
due together with interest thereon at the rate of nine per centum per annum and
whether or not he admits any amount to be due, he shall throughout the
continuation of the suit regularly deposit the monthly amount due within a week
from the date of its accrual, and in the event of any default in making the
deposit of the entire amount admitted by him to be due or the monthly amount
due as aforesaid, the court may subject to the provisions of sub-rule (2),
strike off his defense.
“Explanation 1 - The
expression ‘first hearing’ means the date for filing written statement or for
hearing mentioned in the summons or where more than one of such dates are
mentioned, the last of the dated mentioned.
“Explanation 2 - The
expression ‘entire amount admitted by him to be due’ means the entire gross
amount, whether as rent or compensation for use and occupation, calculated at
the admitted rate of rent for the admitted period of arrears after making no
other deduction except the taxes, if any, paid to a local authority in
respectof the building on lessor’s account and the amount, if any, deposited in
any court under section 30 of the U. P. Urban Buildings (Regulation of Letting,
Rent and Eviction) Act, 1972.
“Explanation 3 - The
expression ‘monthly amount due’ means the amount due every month, whether as
rent or compensation for use and occupation at the admitted rate of rent, after
making no other deductions except the taxes, if any, paid to a local authority
in respect of the building on lessor’s account.
(2)
Before making an order for striking off
defense, the court may consider any representation made by the defendant in
that behalf provided such representation is made within 10 days, of the first
hearing or, of the expiry of the week referred to in sub-section (1), as the
case may be.
(3)
The amount deposited under this rule may at
any time be withdrawn by the plaintiff;
Provided that such
withdrawal shall not have the effect of prejudicing any claim by the plaintiff
disputing the correctness of theamount deposited;
Provided further that if the
amount deposited includes any sums claimed by the depositor to be deductible on
any account, the court may require the plaintiff to furnish security for such
sum before he is allowed to withdraw the same.”
[Vide Uttar Pradesh Act 57
of 1976, s. 7]
Uttar Pradesh
Insertion of new rule in
Order XV Schedule 1 of 1908.-- In the First Schedule to
the said Code, in Order XV, afterrule 4, the following rule shall be inserted,
namely;
“5.
Striking off defense on non-deposit of admittedrent, etc.-
(1)
In any suit by a lessor for the eviction of a
lessee from any immovable property after the determination of his lease, and
for the recovery from him of rent in respect of the period of occupation
thereof during the continuance of the lease, or of compensation for the use or
occupation thereof, whether instituted before or after the commencement of the
Uttar Pradesh Civil Laws Amendment Act, 1972, the defendant shall, at or before
the first hearing of the suit (or in the case of a suit instituted before the commencement
of the said Act, the first hearing after such commencement), deposit the entire
amount of rent, or compensation for use and occupation, admitted by him to be
due, and thereafter throughout the continuance of the suit, deposit regularly
the amount of monthly rent, or compensation for use and occupation, due at the
rate admitted by him, and in the event of any default in this regard, the Court
may, unless after considering any representation made by him in that behalf it
allows him further time on security being furnished for the amount, refuse to
entertain any defense or, as the case may be, strike-off his defense.
(2)
The provisions of this rule are in addition
to and not in derogation of anything contained in rule 10 of Order XXXIX.”
[Vide Uttar Pradesh Act 37
of 1972, s. 7]
[ORDER XV-A CASE MANAGEMENT HEARING
Rule - 1. First Case Management Hearing.
The Court shall hold the
first Case Management Hearing, not later than four weeks from the date of
filing of affidavit of admission or denial of documents by all parties to the
suit.
Rule - 2. Orders to be passed in a Case
Management Hearing.
In a Case Management
Hearing, after hearing the parties, and once it finds that there are issues of
fact and law which require to be tried, the Court may pass an order–
(a)
framing the issues between the parties in
accordance with Order XIV of the Code of Civil Procedure, 1908 (5 of 1908),
after examining pleadings, documents and documents produced before it, and on
examination conducted by the Court under Rule 2 of Order X, if required;
(b)
listing witnesses to be examined by the
parties;
(c)
fixing the date by which affidavit of
evidence to be filed by parties;
(d)
fixing the date on which evidence of the
witnesses of the parties to be recorded;
(e)
fixing the date by which written arguments
are to be filed before the Court by the parties;
(f)
fixing the date on which oral arguments are
to be heard by the Court; and
(g)
setting time limits for parties and their
advocates to address oral arguments.
Rule - 3. Time limit for the completion of a
trial.
In fixing dates or setting
time limits for the purposes of Rule 2 of this Order, the Court shall ensure
that the arguments are closed not later than six months from the date of the
first Case Management Hearing.
Rule - 4. Recording of oral evidence on a
day-to-day basis.
The Court shall, as far as
possible, ensure that the recording of evidence shall be carried on, on a
day-to-day basis until the cross-examination of all the witnesses is complete.
Rule - 5. Case Management Hearings during a
trial.
The Court may, if necessary,
also hold Case Management Hearings anytime during the trial to issue
appropriate orders so as to ensure adherence by the parties to the dates fixed
under Rule 2 and facilitate speedy disposal of the suit.
Rule - 6. Powers of the Court in a Case
Management Hearing.
(1)
In any Case Management Hearing held under
this Order, the Court shall have the power to;
(a)
prior to the framing of issues, hear and
decide any pending application filed by the parties under Order XIII-A;
(b)
direct parties to file compilations of
documents or pleadings relevant and necessary for framing issues;
(c)
extend or shorten the time for compliance
with any practice, direction or Court order if it finds sufficient reason to do
so;
(d)
adjourn or bring forward a hearing if it
finds sufficient reason to do so;
(e)
direct a party to attend the Court for the
purposes of examination under Rule 2 of Order X;
(f)
consolidate proceedings;
(g)
strike off the name of any witness or
evidence that it deems irrelevant to the issues framed;
(h)
direct a separate trial of any issue;
(i)
decide the order in which issues are to be
tried;
(j)
exclude an issue from consideration;
(k)
dismiss or give judgment on a claim after a
decision on a preliminary issue;
(l)
direct that evidence be recorded by a
Commission where necessary in accordance with Order XXVI;
(m)
reject any affidavit of evidence filed by the
parties for containing irrelevant, inadmissible or argumentative material;
(n)
strike off any parts of the affidavit of
evidence filed by the parties containing irrelevant, inadmissible or
argumentative material;
(o)
delegate the recording of evidence to such
authority appointed by the Court for this purpose;
(p)
pass any order relating to the monitoring of
recording the evidence by a commission or any other authority;
(q)
order any party to file and exchange a costs
budget;
(r)
issue directions or pass any order for the
purpose of managing the case and furthering the overriding objective of
ensuring the efficient disposal of the suit.
(2)
When the Court passes an order in exercise of
its powers under this Order, it may-
(a)
make it subject to conditions, including a
condition to pay a sum of money into Court; and
(b)
specify the consequence of failure to comply
with the order or a condition.
(3)
While fixing the date for a Case Management
Hearing, the Court may direct that the parties also be present for such Case
Management Hearing, if it is of the view that there is a possibility of
settlement between the parties.
Rule - 7. Adjournment of Case Management
Hearing.
(1)
The Court shall not adjourn the Case
Management Hearing for the sole reason that the advocate appearing on behalf of
a party is not present:
Provided that an adjournment
of the hearing is sought in advance by moving an application, the Court may
adjourn the hearing to another date upon the payment of such costs as the Court
deems fit, by the party moving such application.
(2)
Notwithstanding anything contained in this
Rule, if the Court is satisfied that there is a justified reason for the
absence of the advocate, it may adjourn the hearing to another date upon such
terms and conditions it deems fit.
Rule - 8. Consequences of non-compliance with
orders.
Where any party fails to
comply with the order of the Court passed in a Case Management Hearing, the
Court shall have the power to-
(a)
condone such non-compliance by payment of
costs to the Court;
(b)
foreclose the non-compliant party’s right to
file affidavits, conduct cross-examination of witnesses, file written
submissions, address oral arguments or make further arguments in the trial, as
the case may be, or
(c)
dismiss the plaint or allow the suit where
such non-compliance is wilful, repeated and the imposition of costs is not
adequate to ensure compliance.]
STATE
AMENDMENT
Jammu and Kashmir and Ladakh
(UTs).
Insertion of Order XV-A.-After
Order XV of the Code, insert the following Order, namely,-
“ORDER
XV-A
1. First Case Management Hearing. The
court shall hold the first Case Management Hearing, not later than four week‘s
from the date of filing of affidavit of admission or denial of documents by all
parties to the suit.
2. Orders to be passed in a Case Management
Hearing.-In a Case Management Hearing, after hearing the parties,
and once it finds that there are issues of fact and law which require to be
tried, the court may pass an order-
(a)
framing the issues between the parties in
accordance with Order XIV of the Code of Civil Procedure, 1908 (5 of 1908)
after examining pleadings, documents and documents produced before it, and on
examination conducted by the court under Rule 2 of Order X, if required;
(b)
listing witnesses to be examined by the
parties;
(c)
fixing the date by which affidavit of
evidence to be filed by parties;
(d)
fixing the date on which evidence of the
witnesses of the parties to be recorded;
(e)
fixing the date by which written arguments
are to be filed before the court by the parties;
(f)
fixing the date on which oral arguments are
to be heard by the court; and
(g)
setting time limits for parties and their
advocates to address oral arguments.
3. Time limit for the completion of a trial.-In
fixing dates or setting time limits for the purposes of Rule 2 of this order,
the court shall ensure that the arguments are closed not later than six months
from the date of the first Case Management Hearing.
4. Recording of oral evidence on a day-to-day
basis.-The court shall, as far as possible, ensure that the
record of evidence shall be carried on, on a day-to-day basis until he cross
examination of all the witnesses is complete.
5. Case Management hearings during trial.- The
court may, if necessary, also hold Case Management Hearings anytime during the
trial to issue appropriate orders so as to ensure adherence by the parties to
the dates fixed under Rule 2 and facilitate speedy disposal of the suit.
6. Powers of the court in a Case Management
Hearing.-
(1)
In any Case Management Hearing held under
this order, the court shall have the power to –
(a)
prior to the framing of issues, hear and
decide any pending application filed by the parties under Order XIII-A;
(b)
direct parties to file compilations of
documents or pleadings relevant and necessary for framing issues;
(c)
extend or shorten the time for compliance
with any practice, direction or court order if it finds sufficient reason to do
so;
(d)
adjourn or bring forward a hearing if it
finds sufficient reason to do so;
(e)
direct a party to attend the court for the
purposes of examination under Rule 2 of Order X;
(f)
consolidate proceedings;
(g)
strike off the name of any witness or
evidence that it deems irrelevant to the issues framed;
(h)
direct a separate trial of any issue;
(i)
decide the order in which issues are to be
tried;
(j)
exclude an issue from consideration;
(k)
dismiss or give judgment on a claim after a
decision on a preliminary issue;
(l)
direct that evidence be recorded by a
Commission where necessary in accordance with Order XXVI;
(m)
reject any affidavit of evidence filed by the
parties for containing irrelevant, inadmissible or argumentative material;
(n)
strike off any parts of the affidavit of
evidence filed by the parties containing irrelevant, inadmissible or
argumentative material;
(o)
delegate the recording of evidence to such
authority appointed by the court for this purpose;
(p)
pass any order relating to the monitoring of
recording the evidence by a commission or any other authority;
(q)
order any party to file land exchange a costs
budget;
(r)
issue directions or pass any order for the
purpose of managing the case and furthering the overriding objective of
ensuring the efficient disposal of the suit.
(2)
When the court passes an order in exercise of
its powers under this order, it may–
(a)
make it subject to conditions, including a
condition to pay a sum of money into court; and
(b)
specify the consequence of failure to comply
with the order or a condition.
(3)
While fixing the date for a Case Management
Hearing, the court may direct that the parties also be present for such Case
Management Hearing, if it is of the view that there is a possibility of
settlement between the parties.
7.
Adjournment of Case Management Hearing.
(1)
The Court shall not adjourn the Case
Management Hearing for the sole reason that the advocate appearing on behalf of
a party is not present:
Provided that an adjournment
of the hearing is sought in advance by moving an application, the court may
adjourn the hearing to another date upon the payment of such costs as the court
deems fit, by the party moving such application.
(2)
Notwithstanding anything contained in this
rule, if the court is satisfied that there is a justified reason for the
absence of the advocate, it may adjourn the hearing to another date upon such
terms and conditions it deems fit.
8. Consequences of non-compliance with orders. Where
any party fails to comply with the order of the court passed in a Case
Management Hearing, the court shall have the power to–
(a)
condone such non-compliance by payment of
costs to the court;
(b)
foreclose the non-compliant party's right to
file affidavits, conduct cross-examination of witnesses, file written
submissions, address oral arguments or make further arguments in the trial, as
the case may be; or
(c)
dismiss the plaint or allow the suit where
such non-compliance is willful, repeated and the imposition of costs is not
adequate to ensure compliance.
[Vide the Jammu and Kashmir
Reorganisation (Adaptation of Central Laws) Order, 2020, notification No. S.O.
1123(E) dated (18-3-2020) and vide Union Territory of Ladakh Reorganisation
(Adaptation of Central Laws) Order, 2020, Notification No. S.O. 3774(E), dated
(23-10-2020)]
[Rule 1 - List of
witnesses and summons to witnesses
(1)
On
or before such date as the Court may appoint, and not later than fifteen days
after the date on which the issues are settled, the parties shall present in
Court a list of witnesses whom they propose to call either to give evidence or
to produce documents and obtain summonses to such persons for their attendance
in Court.
(2)
A
party desirous of obtaining any summons for the attendance of any person shall
file in Court an application stating therein the purpose for which the witness
is proposed to be summoned.
(3)
The
Court may, for reasons to be recorded, permit a party to call, whether by summoning
through Court or otherwise, any witness, other than those whose names appear in
the list referred to in sub-rule (1), if such party shows sufficient cause for
the omission to mention the name of such witness in the said list.
(4) Subject to the provisions
of sub-rule (2), summonses referred to in this rule may be obtained by the
parties on an application to the Court or to such officer as may be appointed
by the [Court in this behalf
within five days of presenting the list of witnesses under sub-rule (1)]
[Rule 1A - Production
of witnesses without summons
Subject to the provisions of sub-rule
(3) of rule 1, any party to the suit may, without applying for summons under
rule 1, bring any witness to give evidence or to produce documents.]
Rule
2 - Expenses of witness to be paid into Court on applying for summons
(1)
The
party applying for a summons shall, before the summons is granted and within a
period to be fixed [which shall not be
later than seven days from the date of making application under sub-rule (4) of
rule 1], pay into Court such a sum of money as appears to the Court to be
sufficient to defray the travelling and other expenses of the person summoned
in passing to and from the Court in which he is required to attend, and for one
day's attendance.
(2)
Experts.-In
determining the amount payable under this rule, the Court may, in the case of
any person summoned to give evidence as an expert, allow reasonable
remuneration for the time occupied both in giving evidence and in performing
any work of an expert character necessary for the case.
(3)
Scale
of expenses.-Where the Court is subordinate to a High Court, regard shall be
had, in fixing the scale of such expenses, to any rules made in that behalf.
[(4) Expenses to be
directly paid to witnesses-Where the summons is served directly by the party on
a witness, the expenses referred to in sub-rule (1) shall be paid to the
witness by the party or his agent.]
Rule
3 - Tender of expenses to witness
The sum so paid into Court shall be
tendered to the person summoned, at the time of serving the summons, if it
can be served personally.
Rule
4 - Procedure where insufficient sum paid in
(1)
Where
it appears to the Court or to such officer as it appoints in this behalf that
the sum paid into Court is not sufficient to cover such expenses or reasonable
remuneration, the Court may direct such further sum to be paid to the person
summoned as appears to be necessary on that account, and, in case of default in
payment, may order such sum to be levied by attachment and sale of the
movable property of the party obtaining the summons; or the Court may discharge
the person summoned without requiring him to give evidence; or may both order
such levy and discharge such person as aforesaid.
(2)
Expenses
of witnesses detained more than one day.- Where it is necessary 10 detain the
person summoned for a longer period than one day, the Court may, from time to
time, order the party at whose instance he was summoned to pay into Court such
sum as is sufficient to defray the expenses of his detention for such further
period, and, in default of such deposit being made, may order such sum to be
levied by attachment and sale of the movable property of such party; or the
Court may discharge the person summoned without requiring hi m to give evidence;
or may both order such levy and discharge such person as aforesaid.
Rule
5 - Time, place and purpose of attendance to be specified in summons
Every summons for the attendance of a
person to give evidence or to produce a document shall specify the time and
place at which he is required to attend, and also whether his attendance is
required for the purpose of giving evidence or to produce a document, or for
both purposes; and any particular document, which the person summoned is called
on to produce, shall be described in the summons with reasonable accuracy.
Rule
6 - Summons to produce document
Any person may be summoned to produce a
document, without being summoned to give evidence, and any
person summoned merely to produce a document shall be deemed to have
complied with the summons if he causes such document to be produced instead of
attending personally to produce the same.
Rule
7 - Power to require persons present in Court to give evidence or produce
document
Any person present in Court may be
required by the Court to give evidence or to produce any document then and
there in his possession or power.
[Rule 7A - Summons
given to party for service
(1)
The
Court may, on the application of any party for the issue of a summons for the
attendance of any person, permit such party to effect service of such summons
on such person and shall, in such a case, deliver the summons to such party for
service. try to effect service of such summons on such person and shall,
in such a case, deliver the summons to such party for service.
(2)
The
service of such summons shall be effected by or on behalf of such party by
delivering or tendering to the witness personally a copy thereof signed by the
Judge or such officer of the Court as he may appoint in this behalf and sealed
with the seal of the Court try by delivering or tendering to the witness
personally a copy thereof signed by the Judge or such officer of the Court as
he may appoint in this behalf and sealed with the seal of the Court.
(3)
The
provisions of rules 16 and 18 of Order V shall apply to a summons personally
served under this rule as if the person effecting service were a serving
officer.
(4)
If
such summons, when tendered, is refused or if the person served refuses to sign
and acknowledgment of service or for any reason such summons cannot be served
personally, the Court shall, on the application of the party, re-issue such
summons to be served by the Court in the same manner as a summons to a
defendant.
(5)
Where
a summons is served by a party under this rule, the party shall not be required
to pay the fees otherwise chargeable for the service of summons.]
Rule
8 - Summons how served
Every summons [under this Order,
not being a summons delivered to a party for service under rule 7A,] shall be
served as nearly as may be in the same manner as summons to a defendant
and the rules in Order V as to proof of service shall apply in the case of all
summonses served under this rule.
Rule
9 - Time for serving summons
Service shall in all cases be made a
sufficient time before the time specified in the summons for the attendance of
the person summoned, to allow him a reasonable time for preparation and for
travelling to the place at which his attendance is required.
Rule
10 - Procedure where witness fails to comply with summons
[(1) Where a person
to whom a summons has been issued either to attend to give evidence or to
produce a document, fails to attend or to produce the document in
compliance with such summons, the Court-
(a)
shall,
if the certificate of the serving officer has not been verified by
affidavit, or if service of the summons has been effected by a party
or his agent, or
(b)
may,
if the certificate of the serving officer has been so verified, examine on
oath the serving or the party or his agent, as the case may be, who has
effected service, or cause him to be so examined by any Court, touching
the service or non-service of the summons.]
(2) Where the Court sees reason to believe that
such evidence or production is material, and that such person"
has, without lawful excuse, failed to attend or to produce the
document in compliance with such summons or has intentionally avoided service,
it may issue a proclamation requiring him to attend to give evidence or to
produce the document at a time and place to be named therein; and a copy of
such proclamation shall be affixed on the outer door to other conspicuous part
of the house in which he ordinarily resides.
(3) In lieu of or at the time of issuing such
proclamation, or at any time afterwards, the Court may, in its discretion,
issue a warrant, either with or without bail, for the arrest of such
person, and may make an order for the attachment of his property to such
amount as it thinks fit, not exceeding the amount of the costs of attachment
and of any fine which may be imposed under rule 12 :
Provided that no Court of Small
Causes shall make an order for the attachment of immovable property.
Rule
11 - If witness appears attachment may be withdrawn
Where, at any time after the attachment
of his property, such person appears and satisfies the Court,-
(a)
that
he did not, without lawful excuse, fail to comply with the summons or
intentionally avoid service, and
(b)
where
he has failed to attend at the time and place named in a proclamation issued
under the last preceding rule, that he had no notice of such proclamation in
time to attend, the Court shall direct that the property be released from
attachment, and shall make such order as to the costs of the attachment as it
thinks fit.
Rule 12 - Procedure if witness fails to
appear
[(1)] The Court may,
where such person does not appear, or appears but fails so to satisfy the
Court, impose upon him such fine not exceeding five hundred rupees as it thinks
fit, having regard to his condition in life and all
the circumstances of the case, and may order his property, or any
part thereof, to the attached and sold or, if already attached under rule 10,
to be sold for the purpose of satisfying all costs of such attachment, together
with the amount of the said fine, if any :
Provided that, if the person whose
attendance in required pays into Court the costs and fine aforesaid, the Court
shall order the property to be released from attachment.
[(2) Notwithstanding
that the Court has not issued a proclamation under sub-rule (2) of rule 10, nor
issued a warrant nor ordered attachment under sub-rule (3) of that rule, the
Court may impose fine under sub-rule (1) of this rule after giving notice to
such person to show cause why the fine should not be imposed.]
Rule
13 - Mode of attachment
The provisions with regard
to the attachment and sale of property in the execution of a decree shall, so
far as they are applicable, be deemed to apply to any attachment and a
sale under this Order as if the person whose properly is so attached were a
judgment-debtor.
Rule
14 - Court may of its own accord summon as witnesses strangers to suit
Subject to the provisions of this Code
as to attendance and appearance and to any law for the time being in force,
where the Court at any time thinks it necessary [to examine any
person, including a party to the suit], and not called as a witness by a
party to the suit, the Court may, of its own motion, cause such person to be
summoned as a witness to give evidence, or to produce any document in his
possession on a day to be appointed, and may examine him as a witness or
require him to produce such document.
Rule
15 - Duty of persons summoned to give evidence or produce document
Subject as last aforesaid, whoever is
summoned to appear and give evidence in a suit shall attend at the time and
place named in the summons for that purpose, and whoever is summoned
to produce a document shall either attend to produce it, or cause it to be
produced, at such time and place.
Rule
16 - When they may depart
(1)
A
person so summoned and attending shall, unless the Court otherwise directs,
attend at each hearing until the suit has been disposed of.
(2)
On
the application of either party and the payment through the Court of all
necessary expenses (if any), the Court may require any person so summoned and
attending to furnish security to attend at the next or any other hearing or
until the suit is disposed of and, in default of his furnishing such security,
may order him to be detained in the civil prison.
Rule
17 - Application of rules 10 to 13
The provisions of
rules 10 to 13 shall, so far as they are applicable, be
deemed to apply to any person who having attended in compliance with a summons
departs, without lawful excuse, in contravention of rule 16.
Rule
18 - Procedure where witness apprehended cannot give evidence or produce
document
Where any person arrested under a
warrant is brought before the Court in custody and cannot, owing to the absence
of the parties or any of them, give the evidence or produce the document which
he has been summoned to give or produce, the Court may require him to give
reasonable bail or other security for his appearance at such
time and place as it thinks fit, and, on such bail or security being
given, may release him, and, in default of his giving such bail or
security, may order him to be detained in the civil prison.
Rule
19 - No witness to be ordered to attend in person unless resident within
certain limits
No one shall be ordered to
attend in person to give evidence unless he resides-
(a)
within
the local limits of the Court's ordinary original jurisdiction, or
(b)
without
such limits but at a place less than [one hundred] or
(where there is railway or steamer communication or other established public
conveyance for five-sixths of the distance between the place where
he resides and the place where the Court is situate) less than [five hundred
kilometers] distance from the court-house :
[Provided that
where transport by air is available between the two places mentioned in
this rule and the witness is paid the fare by air, he may be ordered to attend
in person.]
Rule
20 - Consequence of refusal of party to give evidence when called on by Court
Where any party to a suit present in
Court refuses, without lawful excuse, when required by the Court, to
give evidence or to produce any document then and there in his
possession or power, the Court may pronounce judgment against him or make
such order in relation to the suit as it thinks fit.
Rule
21 - Rules as to witnesses to apply to parties summoned
Where any party to a suit is required
to give evidence or to produce a document, the provisions as to witnesses
shall apply to him so far as they are applicable.
STATE
AMENDMENT
Uttar Pradesh -
Amendment of Order XVI In
the First Schedule, in Order XVI —
(a)
in rule 2, —]
(i)
in sub-rule (1) at the end, the following
proviso shall be inserted, namely:—
“Provided, where Government
is the party applying for a summons to a Government servant, it shall not be
necessary for it to make any such payment into court.” ;
(ii)
sub-rule (4) as inserted by the Allahabad
High Court shall be omitted and after sub-rule (4) as inserted by the Code of
Civil Procedure (Amendment) Act, 1976, the following sub-rule shall be
inserted, namely:—
“(4-A)
Allowances, etc. of, Government servant witnesses to be taxed as costs— Any travelling
and daily allowances and the salary, payable to a Government servant who
attends the Court to give evidence or to produce a document shall, on the
amount being certified by such witness be taxable as costs.
“Explanation 1 — The
travelling and daily allowances shall be in accordance with the rules governing
such allowances, applicable to the Government servant in question.
“Explanation 2 — The daily
allowance and salary of the Government servant shall be proportionate to the
number of days of his attendance required by the Court.” ;
(b)
in rule 4, the following proviso shall be
inserted, namely:—
“Provided that nothing in
this rule shall apply to a case where the witness is a Government servant
summoned at the instance of Government as a party.”
[Vide Uttar Pradesh Act 57
of 1976, s. 8]
[Order
XVIA ATTENDANCE OF WITNESSES CONFINED OR DETAINED IN PRISONS
Rule
1 - Definitions
In this Order,-
(a)
"detained"
includes detained under any law providing for preventive detention;
(b)
"prison"
includes-
(i)
any
place which has been declared by the State Government, by general or
special order, to be a subsidiary jail; and
(ii)
any
reformatory, borstal institution or other institution of a like nature.]
Rule
2 - Power to require attendance of prisoners to give evidence
Where it appears to a Court that the
evidence of a person confined or detained in a prison within the State is
material in a suit, the Court may make an order requiring the officer in charge
of the prison to produce that person before the Court to give evidence:
Provided that, if the distance from the
prison to the Court-house is more than twenty-five kilometres, no such order
shall be made unless the Court is satisfied that the examination of such person
on commission will not be adequate.
Rule
3 - Expenses to be paid into Court
(1)
Before
making any order under rule 2, the Court shall require the party at whose
instance or for whose benefit the order is to be issued, to pay into Court such
sum of money as appears to the Court to be sufficient to defray the expenses of
the execution of the order, including the travelling and other expenses of the
escort provided for the witness.
(2)
Where
the Court is subordinate to a High Court, regard shall be had, in fixing the
scale of such expenses, to any rules made by the High Court in that behalf.
Rule
4 - Power of State Government to exclude certain persons from the operation of
rule 2
(1)
The
Stale Government may, at any time, having regard to the matters specified in
sub-rule (2), by general or special order, direct that any person or class of
persons shall not be removed from the prison in which he or they may be
confined or detained, and thereupon, so long as the order remains in force, no
order made under rule 2, whether before or after the date of the order
made by the State Government, shall have effect in respect of such person or
class of persons.
(2)
Before
making an order under sub-rule (1), the State Government shall have regard to
the following matters, namely :-
(a)
the
nature of the offence for which, or the grounds on which, the person or class
of persons have been ordered to be confined or detained in prison ;
(b)
the
likelihood of the disturbance of public order if the person or class of persons
is allowed to be removed from the prison ; and
(c)
the
public interest, generally.
Rule
5 - Officer in charge of prison to abstain from carrying out order in certain
cases
Where the person in respect of whom an
order is made under rule 2-
(a)
is
certified by the medical officer attached to the prison as unfit to be
removed from the prison by reason of sickness or infirmity; or
(b)
is
under committal for trial or under remand pending trial or pending a
preliminary investigation; or
(c)
is
in custody for a period which would expire before the expiration of the time
required for complying with the order and for taking him back to the
prison in which he is confined or detained; or
(d)
is
a person to whom an order made by the State Government under
rule 4 applies, the officer in charge of the prison shall abstain
from carrying out the Court's order and shall send to the Court a statement of
reasons for so abstaining.
Rule
6 - Prisoner to be brought to Court in custody
In any other case, the officer in
charge of the prison shall, upon delivery of the Court's order, cause the
person named therein to be taken to the Court so as to be present at the
time mentioned in such order, and shall cause him to be kept in
custody in or near the Court until he has been examined or until the Court
authorises him to be taken back to the prison in which he is confined or
detained.
Rule
7 - Power to issue commission for examination of witness in prison
(1)
Where
it appears to the Court that the evidence of a person confined or detained in a
prison, whether within the State or elsewhere in India, is material in a suit
but the attendance of such person cannot be secured under the preceding
provisions of this Order, the Court may issue a commission for the examination
of that person in the prison in which he is confined or detained.
(2)
The
provisions of Order XXVI shall, so far as may be, apply in relation to the
examination on commission of such person in prison as they apply in relation to
the examination on commission of any other person.]
Rule
1 - Court may grant time and adjourn hearing
[(1) The Court may,
if sufficient cause is shown, at any stage of the suit, grant time to the
parties or to any of them, and may from time to time adjourn the hearing
of the suit for reasons to be recorded in writing:
Provided that no such adjournment
shall be granted more than three times to a party during hearing of the suit.]
(2) Costs of adjournment.-In every such case the
Court shall fix a day for the further hearing of the suit, and [shall make such
order as to costs occasioned by the adjournment or such higher costs as the
Court deems fit]:
[Provided that,-
(a)
when
the hearing of the suit has commenced, it shall be continued from day-to-day
until all the witnesses in attendance have been examined, unless the Court
finds that, for the exceptional reasons to be recorded by it, the adjournment
of the hearing beyond the following day is necessary,
(b)
no
adjournment shall be granted at the request of a party, except where the
circumstances are beyond the control of that party,
(c)
the
fact that the pleader of a party is engaged in another Court, shall not be a
ground for adjournment,
(d)
where
the illness of a pleader or his inability to conduct the case for any reason,
other than his being engaged in another Court, is put forward as a ground for
adjournment, the Court shall not grant the adjournment unless it is satisfied
that the party applying for adjournment could not have engaged another pleader
in time,
(e)
where
a witness is present in Court but a party or his pleader is not present or the
party or his pleader, though present in Court, is not ready to examine or
cross-examine the witness, the Court may, if it thinks fit, record the
statement of the witness and pass such orders as it thinks fit dispensing with
the examination-in-chief or cross-examination of the witness, as the case may
be, by the party or his pleader not present or not ready as aforesaid.]
Rule
2 - Procedure if parties fail to appear on day fixed
Where, on any day to which the hearing
of the suit is adjourned, the parties or any of them fail to appear, the Court
may proceed to dispose of the suit in one of the modes directed in that behalf
by Order IX or make such other order as it thinks fit.
[Explanation.-Where
the evidence or a substantial portion of the evidence of any party has already
been recorded and such party fails to appear on any day to which the hearing of
the suit is adjourned, the Court may, in its discretion, proceed with the case
as if such party were present.]
Rule
3 - Court may proceed notwithstanding either party fails to produce evidence)
etc.
Where any party to a suit to whom time
has been granted fails to produce his evidence, or to cause the attendance of
his witnesses, or to perform any other act necessary to the further progress of
the suit, for which time has been allowed, [the Court may,
notwithstanding such default,-
(a)
if
the parties are present, proceed to decide the suit forthwith, or
(b)
if
the parties are, or any of them is, absent, proceed under rule 2].
STATE AMENDMENT
Karnataka –
Insertion of new rule 4 in Order XVII
C.P.C :-
In Order XVII of the Code of Civil
Procedure, 1908 (Central Act 5 of 1908) after rule 3, the following shall be
inserted, namely:-
“4. Priority of disposal of cases involving small
farmers and persons belonging to the economically weaker sections.-
(1) Where in any suit or
other proceeding in any court, a small farmer or a person belonging to the
economically weaker sections is involved either as plaintiff or as defendant,
such case shall be taken up on priority over other cases listed for the day.
(2) The Court shall hear
and dispose of such case, as far as possible within six months,-
(i) in a case pending on
the date of commencement of the Code of Civil Procedure (Karnataka Amendment)
Act, 2023 from such date of commencement or the date next fixed for hearing of
the case, or;
(ii) in a case filed after
the commencement of the Code of Civil Procedure (Karnataka Amendment) Act, 2023
from the date fixed in the summons or notice of such suit or proceeding for the
appearance of the defendant or respondent.
(3) (i) Notwithstanding
anything said in clause (i) of sub-rule (2) above a party claiming benefit of
this rule, may apply to the Court along with an affidavit in proof of his
beneficiary status, for disposal of his case on preference in accordance with
the provisions of this rule.
(ii) In cases filed after the
commencement of this Amendment Act, the beneficiary may apply to the Court, if
he is the plaintiff, and if he is a defendant on the date of his first
appearance before Court, in response to the summons, in the same manner as in
clause (i) above.
(iii) Where the beneficiary status of
the applicant is disputed the Court shall try the question summarily and
dispose of the application as for as possible within fifteen days, on such terms
including compensatory costs.
(4) In disposing of a
case under this rule the Court may, in appropriate circumstances, adopt the
procedure set out in the provisions of Order X, Order XII and Order XXXVII of
the Code.
(5) No adjournment shall
be granted in such a case at the instance of the opponent of the beneficiary,
except for compelling reasons to be recorded by the Court.
Explanation 1: For the purposes of this
rule a case includes a suit or other proceeding arising out of such suit
pending in the High Court, or other Civil Courts.
Explanation 2: Small farmer means a
person who on the date of commencement of this Act, holds whether as owner, or
mortgagee with possession or partly in one capacity and partly in another not
more than such units of land, the annual income from which does not exceed such
amount as determined by the State Government and who has no income from any source
other than agriculture.
Explanation 3: Persons belonging to
weaker section means persons whose annual income from all sources does not
exceed as specified by the Government from time to time.
[Vide Karnataka 08 OF 2024]
Rule
1 - Right to begin
The plaintiff has the right to begin
unless the defendant admits the facts alleged by the plaintiff and contends
that either in point of law or on some additional facts alleged by the
defendant the plaintiff is not entitled to any part of the relief which he
seeks, in which case the defendant has the right to begin.
Rule
2 - Statement and production of evidence
(1)
On
the day fixed for the hearing of the suit or on any other day to which the
hearing is adjourned, the party having the right to begin shall state his case
and produce his evidence in support of the issues which he is bound to prove.
(2)
The
other party shall then state his case and produce his evidence (if any) and may
then address the Court generally on the whole case.
(3)
The
party beginning may then reply generally on the whole case.
[(3A) Any party may
address oral arguments in a case, and shall, before he concludes the oral
arguments, if any, submit if the Court so permits concisely and under distinct
headings written arguments in support of his case to the Court and such written
arguments shall form part of the record.
(3B) A copy of such written arguments shall be
simultaneously furnished to the opposite party.
(3C) No adjournment shall be granted for the purpose
of filing the written arguments unless the Court, for reasons to be recorded in
writing, considers it necessary to grant such adjourment.
(3D) The Court shall fix such time-limits for the
oral arguments by either of the parties in a case, as it thinks fit.]
[***]
STATE
AMENDMENT
Jammu and Kashmir and Ladakh
(UTs)-
In Rule 2, after sub-rule
(3), insert the following sub-rules, namely:-
(3A)
A party shall, within four weeks prior to
commencing the oral arguments, submit concisely and under distinct headings
written arguments in support of his case to the court and such written
arguments shall form part of the record.
(3B)
The written arguments shall clearly
indicate the provisions of the laws being cited in support of the arguments and
the citations of judgments being relied upon by the party and include copies of
such judgments being relied upon by the party.
(3C)
A copy of such written arguments shall be
furnished simultaneously to the opposite party.
(3D)
The court may, if it deems fit, after the
conclusion of arguments, permit the parties to file revised written arguments
within a period of not more than one week after the date of conclusion of
arguments.
(3E)
No adjournment shall be granted for the
purpose of filing the written arguments unless the court, for reasons to be
recorded in writing, considers it necessary to grant such adjournment.
(3F)
It shall be open for the court to limit
the time for oral submissions having regard to the nature and complexity of the
matter.
[Vide the Jammu and Kashmir
Reorganisation (Adaptation of Central Laws) Order, 2020, vide notification No.
S.O. 1123(E) dated (18-3-2020) and vide Union Territory of Ladakh
Reorganisation (Adaptation of Central Laws) Order, 2020, Notification No. S.O.
3774(E), dated (23-10-2020)].
Rule 3. Evidence where several issues
Where there are several
issues, the burden of proving some of which lies on the other party, the party
beginning may, at his option, either produce his evidence on those issues or
reserve it by way of answer to the evidence produced by the other party; and,
in the latter case, the party beginning may produce evidence on those issues
after the other party has produced all his evidence, and the other party may
then reply specially on the evidence so produced by the party beginning; but
the party beginning will then be entitled to reply generally on the whole case.
[Rule
3A. Party to appear before other witnesses
Where a party himself wishes
to appear as a witness, he shall so appear before any other witness on his
behalf has been examined, unless the Court, for reasons to be recorded, permits
him to appear as his own witness at a later stage.]
[Rule
4. Recording of evidence
(1)
In every case, the examination-in-chief of a
witness shall be on affidavit and copies thereof shall be supplied to the
opposite party by the party who calls him for evidence:
Provided that where
documents are filed and the parties rely upon the documents, the proof and
admissibility of such documents which are filed along with affidavit shall be
subject to the orders of the Court.
[(1A)
The affidavits of evidence of all witnesses whose evidence is proposed to be
led by a party shall be filed simultaneously by that party at the time directed
in the first Case Management Hearing.
(1B)
A party shall not lead additional
evidence by the affidavit of any witness (including of a witness who has
already filed an affidavit) unless sufficient cause is made out in an
application for that purpose and an order, giving reasons, permitting such
additional affidavit is passed by the Court.
(1C)
A party shall however have the right to
withdraw any of the affidavits so filed at any time prior to commencement of
cross-examination of that witness, without any adverse inference being drawn
based on such withdrawal:
Provided that any other
party shall be entitled to tender as evidence and rely upon any admission made
in such withdrawn affidavit.]
(2)
The evidence (cross-examination and
re-examination) of the witness in attendance, whose evidence
(examination-in-chief) by affidavit has been furnished to the Court, shall be
taken either by the Court or by the Commissioner appointed by it:
Provided that the Court may,
while appointing a commission under this sub-rule, consider taking into account
such relevant factors as it thinks fit.
(3)
The Court or the Commissioner, as the case
may be, shall record evidence either in writing or mechanically in the presence
of the Judge or of the Commissioner, as the case may be, and where such evidence
is recorded by the Commissioner he shall return such evidence together with his
report in writing signed by him to the Court appointing him and the evidence
taken under it shall form part of the record of the suit.
(4)
The Commissioner may record such remarks as
it thinks material respecting the demeanour of any witness while under
examination:
Provided that any objection
raised during the recording of evidence before the Commissioner shall be
recorded by him and decided by the Court at the stage of arguments.
(5)
The report of the Commissioner shall be
submitted to the Court appointing the commission within sixty days from the
date of issue of the commission unless the Court for reasons to be recorded in
writing extends the time.
(6)
The High Court or the District Judge, as the
case may be, shall prepare a panel of Commissioners to record the evidence
under this rule.
(7)
The Court may by general or special order fix
the amount to be paid as remuneration for the services of the Commissioner.
(8)
The provisions of rules 16, 16A, 17 and 18 of
Order XXVI, in so far as they are applicable, shall apply to the issue,
execution and return of such commission under this rule.]
STATE
AMENDMENT
Jammu and Kashmir and Ladakh
(UTs)
In Rule 4, after sub-rule
(1), insert the following sub-rules, namely:-
(1A)
The affidavits of evidence of all witnesses whose evidence is proposed to be
led by a party shall be filed simultaneously by that party at the time directed
in the first Case Management Hearing.
(1B)
A party shall not lead additional evidence by the affidavit of any witness
(including of a witness who has already filed an affidavit) unless sufficient
cause is made out in an application for that purpose and an order, giving
reasons, permitting such additional affidavit is passed by the court.
(1C)
A party shall however have the right to withdraw any of the affidavits so filed
at any time prior to commencement of cross-examination of that witness, without
any adverse inference being drawn based on such withdrawal:
Provided that any other
party shall be entitled to tender as evidence and rely upon any admission made
in such withdrawn affidavit.
[Vide the Jammu and Kashmir
Reorganisation (Adaptation of Central Laws) Order, 2020, notification No. S.O.
1123(E) dated (18-3-2020) and vide Union Territory of Ladakh Reorganisation
(Adaptation of Central Laws) Order, 2020, Notification No. S.O. 3774(E), dated
(23-10-2020)].
Madhya
Pradesh
Amendment
of First Schedule :-
In the First Schedule to the
principal Act,-
(2)
in order XVIII -
(i)
in rule 4,
(a)
for the existing marginal heading, the
following marginal heading shall be substituted, namely:-
“Recording of evidence in
Commercial Court”
(b)
in sub-rule (1), for the words “In every case”,
the words, brackets and figures “In any suit in respect of a commercial dispute
of a specified value triable in the Commercial Courts constituted under
sub-section (1) of Section 3 of the Commercial Courts Act, 2015 (No. 4 of 2016)
“shall be substituted;
(ii)
after rule 4, the following rule shall be
inserted, namely:-
“4-A.
Witnesses to be examined in open Court.
Except as provided in rule
4, the evidence of the witnesses in attendance shall be taken orally in open
Court in the presence and under the personal direction and superintendence of
the Judge.”
(3)
Insertion of Order XX-B.
After Order XX-A, the
following order shall be inserted, namely:-
“ORDER XX-B
RECOGNITION OF
ELECTRONICALLY SIGNED ORDERS, JUDGMENTS AND DECREES
(1)
Recognition of Electronically Signed Orders, Judgments
and Decrees.
Any order passed, judgment pronounced
or decree prepared which is required to be signed Judge shall be deemed to have
been signed by the Judge, if such order, judgment or decree has been
authenticated by means of electronic signature affixed by the Judge in such manner
as may be prescribed by the High Court.”
[Vide Madhya Pradesh Act 12
of 2022]
[Rule
5. How evidence shall be taken in appealable cases
In case in which an appeal
is allowed, the evidence of each witness shall be,—
(a)
taken down in the language of the Court,—
(i)
in writing by, or in the presence and under
the personal direction and superintendence of, the Judge, or
(ii)
from the dictation of the Judge directly on a
typewriter; or
(b)
if the Judge, for reasons to be recorded, so
directs, recorded mechanically in the language of the Court in the presence of
the Judge.]
[Rule
6. When deposition to be interpreted
Where the evidence is taken
down in a language different from that in which it is given, and the witness
does not understand the language in which it is taken down, the evidence as
taken down in writing shall be interpreted to him in the language in which it
is given.
[Rule
7. Evidence under section 138
Evidence taken down under
section 138 shall be in the form prescribed by rule 5 and shall be read over
and signed and, as occasion may require, interpreted and corrected as if it
were evidence taken down under that rule.
[Rule
8. Memorandum when evidence not taken down by Judge
Where the evidence is not
taken down in writing by the Judge, [or
from his dictation in the open Court, or recorded mechanically in his
presence,] he shall be bound, as the examination of each witness proceeds, to
make a memorandum of the substance of what each witness deposes, and such
memorandum shall be written and signed by the Judge and shall form part of the
record.
[[Rule
9. When evidence may be taken in English
(1)
Where English is not the language of the
Court, but all the parties to the suit who appear in person, and the pleaders
of such of the parties as appear by pleaders, do not object to having such
evidence as is given in English, being taken down in English, the judge may so
take it down or cause it to be taken down.
(2)
Where evidence is not given in English but
all the parties who appear in person, and the pleaders of such of the parties
as appear by pleaders, do not object to having such evidence being taken down
in English, the Judge may take down, or cause to be taken down, such evidence
in English.]
Rule 10. Any particular question and answer
may be taken down
The Court may, of its own
motion or on the application of any party or his pleader, take down any
particular question and answer, or any objection to any question, if there
appears to be any special reason for so doing.
[Rule
11. Questions objected to and allowed by Court
Where any question put to a
witness is objected to by a party or his pleader, and the Court allows the same
to be put, the Judge shall take down the question, the answer, the objection
and the name of the person making it, together with the decision of the Court
thereon.
Rule 12. Remarks on demeanour of witnesses
The Court may record such
remarks as it thinks material respecting the demeanour of any witness while
under examination.
[[Rule
13. Memorandum of evidence in unappealable cases
In cases in which an appeal
is not allowed it shall not be necessary to take down or dictate or record the
evidence of the witnesses at length; but the Judge, as the examination of each
witness proceeds shall make in writing, or dictate directly on the typewriter, or
cause to be mechanically recorded, a memorandum of the substance of what the
witness deposes, and such memorandum shall be signed by the Judge or otherwise
authenticated, and shall form part of the record.]
[Rule
14. Judge unable to make such memorandum to record reasons of his inability
[Repealed by the Code of Civil
Procedure (Amendment) Act, 1976 (104 of 1976), Section 69(vii) (w.e.f.
1-2-1977).]
[Rule
15. Power to deal with evidence taken before another Judge
(1)
Where a Judge is prevented by death, transfer
or other cause from concluding the trial of a suit, his successor may deal with
any evidence or memorandum taken down or made under the foregoing rules as if
such evidence or memorandum had been taken down or made by him or under his
direction under the said rules and may proceed with the suit from the stage at
which his predecessor left it.
(2)
The provisions of sub-rule (1) shall, so far
as they are applicable, be deemed to apply to evidence taken in a suit
transferred under section 24.
[Rule
16. Power to examine witness immediately
(1)
Where a witness is about to leave the
jurisdiction of the Court, or other sufficient cause is shown to the
satisfaction of the Court why his evidence should be taken immediately, the
Court may, upon the application of any party or of the witness, at any time
after the institution of the suit, take the evidence of such witness in manner
hereinbefore provided.
(2)
Where such evidence is not taken forthwith
and in the presence of the parties, such notice as the Court thinks sufficient,
of the day fixed for the examination, shall be given to the parties.
(3)
The evidence so taken shall be read over to
the witness, and, if he admits it to be correct, shall be signed by him, and
the Judge shall, if necessary, correct the same, and shall sign it, and it may
then be read at any hearing of the suit.
Rule 17. Court may recall and examine witness
The Court may at any stage
of a suit recall any witness who has been examined and may (subject to the law
of evidence for the time being in force) put such questions to him as the Court
thinks fit.
Rule 17A. Production of evidence not
previously known or which could not be produced despite due diligence.
[Rep. by the Code of Civil Procedure
(Amendment) Act, 1999 (46 of 1999), section 27(iii) (w.e.f. 1-7-2002).]]
Rule 18. Power of Court to inspect
The Court may at any stage
of a suit inspect any property or thing concerning which any question may arise
[and
where the Court inspects any property or thing it shall, as soon as may be
practicable, make a memorandum of any relevant facts observed at such
inspection and such memorandum shall form a part of the record of the suit].
[Rule
19. Power to get statements recorded on commission
Notwithstanding anything
contained in these rules, the court may, instead of examining witnesses in open
court, direct their statements to be recorded on commission under rule 4A of
Order XXVI.]
State Amendment
Sikkim
Amendment
of Order XVIII :-
In the First Schedule, in
Order XVIII,-
(a)
in rule 2, after sub-rule (3), the following
sub-rules shall be inserted, namely:-
“(3A)
Any party may address oral arguments in a case, and shall, before he concludes
the oral arguments, if any, submit if the Court so permits concisely and under
distinct headings written arguments in support of his case to the Court and
such written arguments shall form part of the record.
“(3B)
A copy of such written arguments shall be simultaneously furnished to the
opposite party.
“(3C)
No adjournment shall be granted for the purpose of filing the written arguments
unless the Court, for reasons to be recorded in writing, considers it necessary
to grant such adjournment.
“(3D)
The Court shall fix such time-limits for the oral arguments by either of the
parties in a case, as it thinks fit.”
(b)
for rule 4 (as substituted by clause (ii) of
section 27 of the Code of Civil Procedure (Amendment) Act, 1999], the following
rule shall be substituted, namely:-
46
of 1999.
Recording
of evidence.
“4. (1) In every case, the examination-in-chief of
a witness shall be on affidavit and copies thereof shall be supplied to the
opposite party by the party who calls him for evidence:
Provided that where
documents are filed and the parties rely upon the documents, the proof and
admissibility of such documents which are filed along with affidavit shall be
subject to the orders of the Court.
(2) The evidence
(cross-examination and re-examination) of the witness in attendance, whose
evidence (examination-in-chief) by affidavit has been furnished to the Court,
shall be taken either by the court or by the Commissioner appointed by it:
Provided that the Court may,
while appointing a commission under this sub-rule, consider taking into account
such relevant factors as it thinks fit.
(3) The Court or the
Commissioner, as the case may be, shall record evidence either in writing or
mechanically in the presence of the Judge or of the Commissioner, as the case may
be, and where such evidence is recorded by the Commissioner he shall return
such evidence together with his report in writing signed by him to the Court
appointing him and the evidence taken under it shall form part of the record of
the suit.
(4) The Commissioner may
record such remarks as it thinks material respecting the demeanour of any
witness while under examination.
Provided that my objection
raised during the recording of evidence before the Commissioner shall be
recorded by lives and decided by the Court at the stage of arguments.
(5) The report of the
Commissioner shall be submitted to the Court appointing the commission within
sixty days from the date of issue of the commission unless the Court for reasons
to be recorded in writing extends the time.
(6) The High Court or the
District Judge, as the case may be, shall prepare a panel of Commissioners to
record the evidence under this rule.
(7) The Court may by general
or special order fix the amount to be paid as remuneration for the services of
the Commissioner.
(8) The provisions of rules
16, 16A, 17 and 18 of Order XXVI, in so far as they are applicable, shall apply
to the issue, execution and return of such commission under this rule.”
[Vide Sikkim Act 22 of 2002]
ORDER XIX Affidavits
Rule 1. Power to order any point to be proved
by affidavit
Any Court may at any time
for sufficient reason order that any particular fact or facts may be proved by
affidavit, or that the affidavit of any witness may be read at the hearing, on
such conditions as the Court thinks reasonable:
Provided that where it
appears to the Court that either party bona fide desires the production of a
witness for cross-examination, and that such witness can be produced, an order
shall not be made authorising the evidence of such witness to be given by
affidavit.
Rule 2. Power to order attendance of deponent
for cross-examination
(1)
Upon any application evidence may be given by
affidavit, but the Court may, at the instance of either party, order the
attendance for cross-examination of the deponent.
(2)
Such attendance shall be in Court, unless the
deponent is exempted from personal appearance in Court or the Court otherwise
directs.
Rule 3. Matters to which affidavits shall be
confined
(1)
Affidavits shall be confined to such facts as
the deponent is able of his own knowledge to prove, except on interlocutory
applications, on which statements of his belief may be admitted: provided that
the grounds thereof are stated.
(2)
The costs of every affidavit which shall
unnecessarily set forth matters of hearsay or argumentative matter, or copies
of or extracts from documents, shall (unless the Court otherwise directs) be paid
by the party filing the same.
STATE
AMENDMENT
Jammu and Kashmir and Ladakh
(UTs)-
In Order XIX of the Code,
after Rule 3, insert the following new rules, namely-
4.
Court may control evidence
(1)
The court may, by directions regulate the
evidence as to issues on which it requires evidence and the manner in which
such evidence may be placed before the court.
(2)
The court may, in its discretion and for
reasons to be recorded in writing, exclude evidence that would otherwise be
produced by the parties.
5.
Redacting or rejecting evidence
A court may, in its
discretion, for reasons to be recorded in writing—
(i)
redact or order the redaction of such
portions of the affidavit of examination-in-chief as do not, in its view,
constitute evidence; or
(ii)
return or reject an affidavit of
examination-in-chief as not constituting admissible evidence.
6.
Format and guidelines of affidavit of evidence
An affidavit must comply
with the form and requirements set forth below:—
(a)
such affidavit should be confined to, and
should follow the chronological sequence of, the dates and events that are
relevant for proving any fact or any other matter dealt with;
(b)
where the court is of the view that an
affidavit is a mere reproduction of the pleadings, or contains the legal
grounds of any party's case, the court may, by order, strike out the affidavit
or such parts of the affidavit, as it deems fit and proper;
(c)
each paragraph of an affidavit should, as far
as possible, be confined to a distinct portion of the subject;
(d)
an affidavit shall state—
(ii)
which of the statements in it are made from
the deponent's own knowledge and which are matters of information or belief;
and
(iii)
the source for any matters of information or
belief.
(e)
an affidavit should—
(i)
have the pages numbered consecutively as a
separate document (or as one of several documents contained in a file);
(ii)
be divided into numbered paragraphs;
(iii)
have all numbers, including dates, expressed
in figures; and
(iv)
if any of the documents referred to in the
body of the affidavit are annexed to the affidavit or any other pleadings, give
the annexures and page numbers of such documents that are relied upon.
[Vide the Jammu and Kashmir
Reorganisation (Adaptation of Central Laws) Order, 2020, notification No. S.O.
1123(E) dated (18-3-2020) and vide Union Territory of Ladakh Reorganisation
(Adaptation of Central Laws) Order, 2020, Notification No. S.O. 3774(E), dated
(23-10-2020)].
[446][4.
Court may control evidence
(1)
The Court may, by directions, regulate the
evidence as to issues on which it requires evidence and the manner in which
such evidence may be placed before the Court.
(2)
The Court may, in its discretion and for
reasons to be recorded in writing, exclude evidence that would otherwise be
produced by the parties.
5.
Redacting or rejecting evidence
A Court may, in its
discretion, for reasons to be recorded in writing––
(i)
redact or order the redaction of such
portions of the affidavit of examination-in-chief as do not, in its view,
constitute evidence; or
(ii)
return or reject an affidavit of
examination-in-chief as not constituting admissible evidence.
6.
Format and guidelines of affidavit of evidence
An affidavit must comply
with the form and requirements set forth below:-
(a)
such affidavit should be confined to, and
should follow the chronological sequence of, the dates and events that are
relevant for proving any fact or any other matter dealt with;
(b)
where the Court is of the view that an
affidavit is a mere reproduction of the pleadings, or contains the legal
grounds of any party’s case, the Court may, by order, strike out the affidavit
or such parts of the affidavit, as it deems fit and proper;
(c)
each paragraph of an affidavit should, as far
as possible, be confined to a distinct portion of the subject;
(d)
an affidavit shall state—
(i)
which of the statements in it are made from
the deponent’s own knowledge and which are matters of information or belief;
and
(ii)
the source for any matters of information or
belief;
(e)
an affidavit should—
(i)
have the pages numbered consecutively as a
separate document (or as one of several documents contained in a file);
(ii)
be divided into numbered paragraphs;
(iii)
have all numbers, including dates, expressed
in figures; and
(iv)
if any of the documents referred to in the
body of the affidavit are annexed to the affidavit or any other pleadings, give
the annexures and page numbers of such documents that are relied upon.]
Amendment of Order XIX
In the Schedule, in Order
XIX, in rule 1, for the existing proviso, the following proviso shall be
substituted, namely:--
“Provided that if it appears
to the Court, whether at the instance of either party, or otherwise and whether
before or after the filing of such affidavit, that the production of such
witness for cross- examination is necessary and his attendance can be produced,
the Court shall order the attendance of such witness, whereupon the witness may
be examined, cross-examined and re-examined.”
[Vide Uttar Pradesh Act 57
of 1976, s. 9]
Madhya
Pradesh
Amendment
Of Order Xix Of The First Schedule :-
In Order XIX of the First
Schedule to the Principal Act, after Rule 1, the following rule shall be
inserted, namely :-
“1-A.
Proof of fact by affidavit in certain cases.-
Notwithstanding anything to
the contrary in Rule 1, the Court shall, in a suit or proceeding referred to in
Rule 3-B of Order I and whether or not any proceeding under the Madhya Pradesh
Ceiling on Agricultural Holdings Act, 1960 (No. 20 of 1960) are pending before
the competent authority appointed under that Act, call upon the parties to
prove any particular fact or facts as it may direct, by affidavit, unless the
Court looking to the nature and complexity of the suit or proceeding and for
reasons to be recorded in writing deems it just and expedient to dispense with
the proof of a fact or facts by affidavits.”
[Vide Madhya Pradesh Act 29
of 1984]
ORDER XX Judgment and decree
[[Rule
1. Judgment when pronounced
[(1)
The Court, after the case has been heard, shall pronounce judgment in an open
Court, either at once, or as soon thereafter as may be practicable and when the
judgment is to be pronounced on some future day, the Court shall fix a day for
that purpose, of which due notice shall be given to the parties or their
pleaders:
Provided that where the
judgment is not pronounced at once, every endeavour shall be made by the Court
to pronounce the judgment within thirty days from the date on which the hearing
of the case was concluded but, where it is not practicable so to do on the
ground of the exceptional and extraordinary circumstances of the case, the
Court shall fix a future day for the pronouncement of the judgment, and such
day shall not ordinarily be a day beyond sixty days from the date on which the
hearing of the case was concluded, and due notice of the day so fixed shall be
given to the parties or their pleaders.]
[(1)
The Commercial Court, Commercial Division, or Commercial Appellate Division, as
the case may be, shall, within ninety days of the conclusion of arguments,
pronounce judgment and copies thereof shall be issued to all the parties to the
dispute through electronic mail or otherwise.]
[(2)
Where a written judgment is to be pronounced, it shall be sufficient if the
findings of the Court on each issue and the final order passed in the case are
read out and it shall not be necessary for the Court to read out the whole judgment
***.
(3)
The judgment may be pronounced by dictation in open Court to a shorthand writer
if the Judge is specially empowered by the High Court in this behalf:
Provided that, where the
judgment is pronounced by dictation in open Court, the transcript of the
judgment so pronounced shall, after making such correction therein as may be
necessary, be signed by the judge, bear the date on which it was pronounced,
and form a part of the record.]
Rule 2. Power to pronounce judgment written
by judge’s predecessor
[A
Judge shall] pronounce a judgment written, but not pronounced, by his
predecessor.
[Rule
3. Judgment to be signed
The judgment shall be dated
and signed by the Judge in open Court at the time of pronouncing it and, when
once signed, shall not afterwards be altered or added, to save as provided by
section 152 or on review.
[Rule
4. Judgments of Small Cause Courts
(1)
Judgments of a Court of Small Causes need not
contain more than the points for determination and the decision thereon.
(2)
Judgments of other Courts Judgments of other
Courts shall contain a concise statement of the case, the points for
determination, the decision thereon, and the reasons for such decision.
[Rule
5. Court to state its decision on each issue
In suits in which issues
have been framed, the Court shall state its finding or decision, with the
reasons therefor, upon each separate issue, unless the finding upon any one or
more of the issue is sufficient for the decision of the suit.
[Rule
5A. Court to inform parties as to where an appeal lies in cases where parties
are not represented by pleaders Except
where both the parties are
represented by pleaders, the Court shall, when it pronounces its judgment in a
case subject to appeal, inform the parties present in Court as to the Court to
which an appeal lies and the period of limitation for the filing of such appeal
and place on record the information so given to the parties.]
Rule 6. Contents of decree
(1)
The decree shall agree with the judgment it
shall contain the number of the suit, the [names
and descriptions of the parties, their registered addresses,] and particulars
of the claim, and shall specify clearly the relief granted or other
determination of the suit.
(2)
The decree shall also state the amount of
costs incurred in the suit, and by whom or out of what property and in what
proportions such costs are to be paid.
(3)
The Court may direct that the costs payable
to one party by the other shall be set off against any sum which is admitted or
found to be due from the former to the latter.
[Rule
6A. Preparation of decree
(1)
Every endeavour shall be made to ensure that
the decree is drawn up as expeditiously as possible and, in any case, within
fifteen days from the date on which the judgment is pronounced.
(2)
An appeal may be preferred against the decree
without filing a copy of the decree and in such a case the copy made available
to the party by the court shall for the purposes of rule 1 of Order XLI be
treated as the decree. But as soon as the decree is drawn, the judgment shall
cease to have the effect of a decree for the purposes of execution or for any
other purpose.
Rule 6B. Copies of judgments when to be made
available
Where the judgment is
pronounced, copies of the judgment shall be made available to the parties
immediately after the pronouncement of the judgment for preferring an appeal on
payment of such charges as may be specified in the rule made by the High
Court.]
Rule 7. Date of decree
The decree shall bear the
day on which the judgment was pronounced, and, when the judge has satisfied
himself that the decree has been drawn up in accordance with the judgment, he
shall sign the decree.
Rule 8. Procedure where Judge has vacated
office before signing decree
Where a Judge has vacated
office after pronouncing judgment but without signing the decree, a decree
drawn up in accordance with such judgment may be signed by his successor or, if
the Court has ceased to exist, by the Judge of any Court to which such Court
was subordinate.
Rule 9. Decree for recovery of immovable
property
Where the subject-matter of
the suit is immovable property, the decree shall contain a description of such
property sufficient to identify the same, and where such property can be
identified by boundaries or by numbers in a record of settlement or survey, the
decree shall specify such boundaries or numbers.
Rule 10. Decree for delivery of movable
property
Where the suit is for
movable property, and the decree is for the delivery of such property, the decree
shall also state the amount of money to be paid as an alternative if delivery
cannot be had.
Rule 11. Decree may direct payment by
instalments
(1)
Where and in so far as a decree is for the
payment of money, the Court may for any sufficient reason [incorporate
in the decree, after hearing such of the parties who had appeared personally or
by pleader at the last hearing, before judgment, an order that] payment of the
amount decreed shall be postponed or shall be made by instalments, with or
without interest, notwithstanding anything contained in the contract under
which the money is payable.
(2)
Order, after decree, for payment by
instalments After the passing of any such decree the Court may, on the
application of the judgment-debtor and with the consent of the decree-holder,
order that payment of the amount decreed shall be postponed or shall be made by
instalments on such terms as to the payment of interest, the attachment of the
property of the judgment-debtor, or the taking of security from him, or otherwise,
as it thinks fit.
Rule 12. Decree for possession and mesne
profits
(1)
Where a suit is for the recovery of
possession of immovable property and for rent or mesne profits, the Court may
pass a decree—
(a)
for the possession of the property;
[(b)
for the rents which have accrued on the property during the period prior to the
institution of the suit or directing an inquiry as to such rent.
(ba)
for the mesne profits or directing an inquiry as to such mesne profits;]
(c) directing an inquiry as to rent or mesne
profits from the institution of the suit until—
(i)
the delivery of possession to the
decree-holder,
(ii)
the relinquishment of possession by the
judgment-debtor with notice to the decree-holder through the Court, or
(iii)
the expiration of three years from the date
of the decree, whichever, event first occurs.
(2)
Where an inquiry is directed under clause (b)
or clause (c), a final decree in respect of the rent or mesne profits shall be
passed in accordance with the result of such inquiry.
[Rule
12A. Decree for specific performance of contract for the sale or lease of
immovable property
Where a decree for the
specific performance of a contract for the sale or lease of immovable property
orders that the purchase-money or other sum be paid by the purchaser or lessee,
it shall specify the period within which the payment shall be made.]
Rule 13. Decree in administration suit
(1)
Where a suit is for an account of any
property and for its due administration under the decree of the Court, the
Court shall, before passing the final decree, pass a preliminary decree
ordering such accounts and inquiries to be taken and made, and giving such
other directions as it thinks fit.
(2)
In the administration by the Court of the
property of any deceased person, if such property proves to be insufficient for
the payment in full of his debts and liabilities, the same rules shall be
observed as to the respective rights of secured and unsecured creditors and as
to debts and liabilities provable, and as to the valuation of annuities and
future and contingent liabilities respectively, as may be in force for the time
being, within the local limits of the Court in which the administration-suit is
pending with respect to the estates of persons adjudged or declared insolvent;
and all persons who in any such case would be entitled to be paid out of such
property, may come in under the preliminary decree, and make such claims
against the same as they may respectively be entitled to by virtue of this
Code.
Rule 14. Decree in pre-emption suit
(1)
Where the Court decrees a claim to
pre-emption in respect of a particular sale of property and the purchase-money
has not been paid into Court, the decree shall—
(a)
specify a day on or before which the
purchase-money shall be so paid, and
(b)
direct that on payment into Court of such
purchase-money, together with the costs (if any) decrees against the plaintiff,
on or before the day referred to in clause (a), the defendant shall deliver
possession of the property to the plaintiff, whose title thereto shall be
deemed to have accrued from the date of such payment, but that, if the
purchase-money and the costs (if any) are not so paid, the suit shall be
dismissed with costs.
(2)
Where the Court has adjudicated upon rival
claims to pre-emption, the decree shall direct,—
(a)
if and in so far as the claims decreed are
equal in decree, that the claim of each pre-emptor complying with the
provisions of sub-rule (1) shall take effect in respect of a proportionate
share of the property including any proportionate share in respect of which the
claim of any pre-emptor failing to comply with the said provisions would, but
for such default, have taken effect; and
(b)
if and in so far as the claims decreed are
different in degree, that the claim of the inferior pre- emptor shall not take
effect unless and until the superior pre-emptor has failed to comply with the
said provisions.
Rule 15. Decree in suit for dissolution of
partnership
Where a suit is for the
dissolution of a partnership, or the taking of partnership accounts, the Court,
before passing a final decree, may pass a preliminary decree declaring the
proportionate shares of the parties, fixing the day on which the partnership
shall stand dissolved or be deemed to have been dissolved, and directing such
accounts to be taken, and other acts to be done, as it thinks fit.
Rule 16. Decree in suit for account between
principal and agent
In a suit for an account of
pecuniary transactions between a principal and an agent, and in any other suit
not hereinbefore provided for, where it is necessary, in order to ascertain the
amount of money due to or from any party, that an account should be taken, the
Court shall, before passing its final decree, pass a preliminary decree
directing such accounts to be taken as it thinks fit.
Rule 17. Special directions as to accounts
The Court may either by the
decree directing an account to be taken or by any subsequent order give special
direction with regard to the mode in which the account is to be taken or
vouched and in particular may direct that in taking the account the books of
account in which the accounts in question have been kept shall be taken as
prima facie evidence of the truth of the matters therein contained with liberty
to the parties interested to take such objection thereto as they may be
advised.
Rule 18. Decree in suit for partition of
property or separate possession of a share therein
Where the Court passes a
decree for the partition of property or for the separate possession of a share
therein, then,—
(1)
if and in so far as the decree relates to an
estate assessed to the payment of revenue to the Government, the decree shall
declare the rights of the several parties interested in the property, but shall
direct such partition or separation to be made by the Collector, or any
gazetted subordinate of the Collector deputed by him in this behalf, in
accordance with such declaration and with the provisions of section 54;
(2)
if and in so far as such decree relates to
any other immovable property or to movable property, the Court may, if the
partition or separation cannot be conveniently made without further inquiry,
pass a preliminary decree declaring the rights of the several parties
interested in the property and giving such further directions as may be
required.
Rule 19. Decree when set-off or counter-claim
is allowed
(1)
Where the defendant has been allowed a
set-off [or
counter-claim] against the claim of the plaintiff, the decree shall state what
amount is due to the plaintiff and what amount is due to the defendant, and
shall be for the recovery of any sum which appears to be due to either party.
(2)
Appeal from decree relating to set-off or
counter-claim Any decree passed in a suit in which a set-off [or
counter-claim] is claimed shall be subject to the same provisions in respect of
appeal to which it would have been subject if no set-off [or
counter-claim] had been claimed.
(3)
The provisions of this rule shall apply
whether the set-off is admissible under rule 6 of Order VIII or otherwise.
Rule 20. Certified copies of judgment and
decree to be furnished
Certified copies of the
judgment and decree shall be furnished to the parties on application to the
Court, and at their expense.
State Amendment
Sikkim
Amendment
of Order XX :-
In the First Schedule, in
Order XX, in rule 1, for sub-rule (1), the following sub-rule shall be
substituted, namely:-
“(1)
The Court, after the case has been heard,
shall pronounce judgment in an open Court, either at once, or as soon
thereafter as may be practicable and when the judgment is to be pronounced on
some future day, the Court shall fix a day for that purpose, of which due
notice shall be given to the parties or their pleaders:
Provided that where the
judgment is not pronounced at once, every endeavour shall be made by the Court
to pronounce the judgment within thirty day from the date on which the hearing
of the case was concluded but, where it is not practicable so to do on the
ground of the exceptional and extraordinary circumstances of the case, the
Court shall fix a future day for the pronouncement of the judgment, and such
day shall not ordinarily be a day beyond sixty days from the date on which the
hearing of the case was concluded, and due notice of the day so fixed shall be
given to the parties or their pleaders”
[Vide Sikkim Act 22 of 2002]
[466][ORDER XXA Costs
Rule 1. Provisions relating to certain items
Without prejudice to the
generality of the provisions of this Code relating to costs, the Court may
award costs in respect of,-
(a)
expenditure incurred for the giving of any notice
required to be given by law before the institution of the suit;
(b)
expenditure incurred on any notice which,
though not required to be given by law, has been given by any party to the suit
to any other party before the institution of the suit;
(c)
expenditure incurred on the typing, writing
or printing of pleadings filed by any party;
(d)
charges paid by a party for inspection of the
records of the Court for the purposes of the suit;
(e)
expenditure incurred by a party for producing
witnesses, even though not summoned through Court; and
(f)
in the case of appeals, charges incurred by a
party for obtaining any copies of judgments and decrees which are required to
be filed along with the memorandum of appeal.
Rule 2. Costs to be awarded in accordance
with the rules made by High Court
The award of Costs under
this rule shall be in accordance with such rules as the High Court may make in
that behalf.]
ORDER XXI Execution of Decrees and Orders
Payment under decree
[Rule
1. Modes of paying money under decree
(1)
All money, payable under a decree shall be
paid as follows, namely:—
(a)
by deposit into the court whose duty it is to
execute the decree, or sent to that Court by postal money order or through a
bank; or
(b)
out of Court, to the decree-holder by postal
money order or through a bank or by any other mode wherein payment is evidenced
in writing; or
(c)
otherwise, as the Court which made the
decree, directs.
(2)
Where any payments is made under clause (a)
or clause (c) of sub-rule (1), the judgment-debtor shall give notice thereof to
the decree-holder either through the Court or directly to him by registered
post, acknowledgment due.
(3)
Where money is paid by postal money order or
through a bank under clause (a) or clause (b) of sub-rule (1), the money order
or payment through bank, as the case may be, shall accurately state the
following particulars, namely:—
(a)
the number of the original suit;
(b)
the names of the parties or where there are
more than two plaintiffs or more than two defendants, as the case may be, the
names of the first two plaintiffs and the first two defendants;
(c)
how the money remitted is to be adjusted,
that is to say, whether it is towards the principal, interest or costs;
(d)
the number of the execution case of the
Court, where such case is pending; and
(e)
the name and address of the payer.
(4)
On any amount paid under clause (a) or clause
(c) of sub-rule (1), interest, if any, shall cease to run from the date of
service of the notice referred to in sub-rule (2).
(5)
On any amount paid under clause (b) of
sub-rule (1), interest, if any, shall cease to run from the date of such
payment:
Provided that, where the
decree-holder refuses to accept the postal money order or payment through a
bank, interest shall cease to run from the date on which the money was tendered
to him, or where he avoids acceptance of the postal money order or payment
through bank, interest shall cease to run from the date on which the money
would have been tendered to him in the ordinary course of business of the
postal authorities or the bank, as the case may be.]
Rule 2. Payment out of Court to decree-holder
(1)
Where any money payable under a decree of any
kind is paid out of Court, [or
decree of any kind is otherwise adjusted] in whole or in part to the
satisfaction of the decree-holder, the decree-holder shall certify such payment
or adjustment to the Court whose duty it is to execute the decree, and the
Court shall record the same accordingly.
(2)
The judgment-debtor [or
any person who has become surety for the judgment-debtor] also may inform the
Court of such payment or adjustment, and apply to the Court to issue a notice
to the decree- holder to show cause, on a day to be fixed by the Court, why
such payment or adjustment should not be recorded as certified; and if, after
service of such notice, the decree-holder fails to show cause why the payment
or adjustment should not be recorded as certified, the Court shall record the
same accordingly.
[(2A)
No payment or adjustment shall be recorded at the instance of the
judgment-debtor unless—
(a)
the payment is made in the manner provided in
rule 1; or
(b)
the payment or adjustment is proved by
documentary evidence; or
(c)
the payment or adjustment is admitted by, or
on behalf of, the decree-holder in his reply to the notice given under sub-rule
(2) of rule 1, or before the Court.]
(3)
A payment or adjustment, which has not been certified or recorded as aforesaid,
shall not be recognized by any Court executing the decree.
Courts
executing decrees
Rule 3. Lands situate in more than one
jurisdiction
Where immovable property
forms one estate or tenure situate within the local limits of the jurisdiction
of two or more Courts, any one of such Courts may attach and sell the entire
estate or tenure.
Rule 4. Transfer to Court of Small Causes
Where a decree has been
passed in a suit of which the value as set forth in the plaint did not exceed
two thousand rupees and which, as regards its subject-matter, is not excepted
by the law for the title being in force from the cognizance of either a
Presidency or a Provincial Court of Small Causes, and the Court which passed it
wishes it to be executed in Calcutta, Madras [or
Bombay], such Court may send to the Court of Small Causes in Calcutta, Madras [or
Bombay], as the case may be, the copies and certificates mentioned in rule 6;
and such Court of Small Causes shall thereupon execute the decree as if it had
been passed by itself.
[Rule
5. Mode of transfer
Where a decree is to be sent
for execution to another Court, the Court which passed such decree shall send
the decree directly to such other Court whether or not such other Court is
situated in the same State, but the Court to which the decree is sent for execution
shall, if it has no jurisdiction to execute the decree, send it to the Court
having such jurisdiction.]
Rule 6. Procedure where Court desires that
its own decree shall be executed by another Court
The Court sending a decree
for execution shall send—
(a)
a copy of the decree;
(b)
a certificate setting forth that satisfaction
of the decree has not been obtained by execution within the jurisdiction of the
Court by which it was passed, or, where the decree has been executed in part,
the extent to which satisfaction has been obtained and what part of the decree
remains unsatisfied; and
(c)
a copy of any order for the execution of the
decree, or, if no such order has been made, a certificate to that effect.
Rule 7. Court receiving copies of decree,
etc., to file same without proof
The Court to which a decree
is so sent shall cause such copies and certificates to be filed, without any
further proof of the decree or order for execution, or of the copies thereof,
unless the Court, for any special reasons to be recorded under the hand of the
Judge, requires such proof.
Rule 8. Execution of decree or order by Court
to which it is sent
Where such copies are so
filed, the decree or order may, if the Court to which it is sent is the
District Court, be executed by such Court or be transferred for execution to
any subordinate Court of competent jurisdiction.
Rule 9. Execution by High Court of decree
transferred by other Court
Where the Court to which the
decree is sent for execution is a High Court, the decree shall be executed by
such Court in the same manner as if it had been passed by such Court in the
exercise of its ordinary original civil jurisdiction.
Application
for execution
Rule 10. Application for execution
Where the holder of a decree
desires to execute it, he shall apply to the Court which passed the decree or
to the officer (if any) appointed in this behalf, or if the decree has been
sent under the provisions hereinbefore contained to another Court then to such
Court or to the proper officer thereof.
Rule 11. Oral application
(1)
Where a decree is for the payment of money
the Court may, on the oral application of the decree-holder at the time of the
passing of the decree, order immediate execution thereof by the arrest of the
judgment-debtor, prior to the preparation of a warrant if he is within the
precincts of the Court.
(2)
Written application Save as otherwise
provided by sub-rule (1), every application for the execution of a decree shall
be in writing, signed and verified by the applicant or by some other person proved
to the satisfaction of the Court to be acquainted with the facts of the case,
and shall contain in a tabular form the following particulars, namely:—
(a)
the number of the suit;
(b)
the names of the parties;
(c)
the date of the decree;
(d)
whether any appeal has been preferred from
the decree;
(e)
whether any, and (if any) what, payment or
other adjustment of the matter in controversy has been made between the parties
subsequently to the decree;
(f)
whether any, and (if any) what, previous
applications have been made for the execution of the decree, the dates of such
applications and their results;
(g)
the amount with interest (if any) due upon
the decree, or other relief granted thereby, together with particulars of any
cross-decree, whether passed before or after the date of the decree sought to
be executed;
(h)
the amount of the costs (if any) awarded;
(i)
the name of the person against whom execution
of the decree is sought; and
(j)
the mode in which the assistance of the Court
is required whether,—
(i)
by the delivery of any property specifically
decreed;
[(ii)
by the attachment, or by the attachment and sale, or by the sale without
attachment, of any property;]
(iii)
by the arrest and detention in prison of any person;
(iv)
by the appointment of a receiver;
(v)
otherwise, as the nature of the relief granted may require.
(3)
The Court to which an application is made
under sub-rule (2) may require the applicant to produce a certified copy of the
decree.
[Rule
11A. Application for arrest to state grounds
Where an application is made
for the arrest and detention in prison of the judgment-debtor, it shall state,
or be accompanied by an affidavit stating, the grounds on which arrest is
applied for.]
Rule 12. Application for attachment of
movable property not in judgment-debtor’s possession
Where an application is made
for the attachment of any movable property belonging to a judgment-debtor but
not in his possession, the decree-holder shall annex to the application an
inventory of the property to be attached, containing a reasonably accurate
description of the same.
Rule 13. Application for attachment of
immovable property to contain certain particulars
Where an application is made
for the attachment of any immovable property belonging to a judgment-debtor, it
shall contain at the foot—
(a)
a description of such property sufficient to
identify the same and, in case such property can be identified by boundaries or
numbers in a record of settlement or survey, a specification of such boundaries
or numbers; and
(b)
a specification of the judgment-debtor’s
share or interest in such property to the best of the belief of the applicant,
and so far as he has been able to ascertain the same.
Rule 14. Power to require certified extract
from Collector’s register in certain cases
Where an application is made
for the attachment of any land which is registered in the office of the
Collector, the Court may require the applicant to produce a certified extract
from the register of such office, specifying the persons registered as proprietors
of, or as possessing any transferable interest in, the land or its revenue, or
as liable to pay revenue for the land, and the shares of the registered
proprietors.
Rule 15. Application for execution by Joint
decree-holders
(1)
Where a decree has been passed jointly in
favour of more persons than one, any one or more of such persons may, unless
the decree imposes any condition to the contrary, apply for the execution of
the whole decree for the benefit of them all, or, where any of them has died, for
the benefit of the survivors and the legal representatives of the deceased.
(2)
Where the Court sees sufficient cause for
allowing the decree to be executed on an application made under this rule, it
shall make such order as it deems necessary for protecting the interest of the
persons who have not joined in the application.
Rule 16. Application for execution by
transferee of decree
Where a decree or, if a
decree has been passed jointly in favour of two or more persons, the interest
of any decree-holder in the decree is transferred by assignment in writing or
by operation of law, the transferee may apply for execution of the decree to
the Court which passed it; and the decree may be executed in the same manner
and subject to the same conditions as if the application were made by such
decree-holder:
Provided that, where the
decree, or such interest as aforesaid, has been transferred by assignment,
notice of such application shall be given to the transferor and the
judgment-debtor, and the decree shall not be executed until the Court has heard
their objections (if any) to its execution:
Provided also that, where a
decree for the payment of money against two or more persons has been
transferred to one of them, it shall not be executed against the others.
[Explanation
Nothing in this rule shall affect the provisions of section 146, and a
transferee of rights in the property, which is the subject matter of the suit,
may apply for execution of the decree without a separate assignment of the
decree as required by this rule.]
Rule 17. Procedure on receiving application
for execution of decree
(1)
On receiving an application for the execution
of a decree as provided by rule 11, sub-rule (2), the Court shall ascertain
whether such of the requirements of rules 11 to 14 as may be applicable to the
case have been complied with; and, if they have not been complied with, 2[the
Court shall allow] the defect to be remedied then and there or within a time to
be fixed by it.
[(1A)
If the defect is not so remedied, the Court shall reject the application:
Provided that where, in the
opinion of the Court, there is some inaccuracy as to the amount referred to in
clauses (g) and (h) of sub-rule (2) of rule 11, the Court shall, instead of
rejecting the application, decide provisionally (without prejudice to the right
of the parties to have the amount finally decided in the course of the
proceedings) the amount and make an order for the execution of the decree for
the amount so provisionally decided.]
(2)
Where an application is amended under the
provisions of sub-rule (1), it shall be deemed to have been an application in
accordance with law and presented on the date when it was first presented.
(3)
Every amendment made under this rule shall be
signed or initialled by the Judge.
(4)
When the application is admitted, the Court
shall enter in the proper register a note of the application and the date on
which it was made, and shall, subject to the provisions hereinafter contained,
order execution of the decree according to the nature of the application:
Provided that, in the case
of a decree for the payment of money, the value of the property attached shall,
as nearly as may be, correspond with the amount due under the decree.
Rule 18. Execution in case of cross-decrees
(1)
Where applications are made to a Court for
the execution of cross-decrees in separate suits for the payment of two sums of
money passed between the same parties and capable of execution at the same time
by such Court, then—
(a)
if the two sums are, equal, satisfaction
shall be entered upon both decrees; and
(b)
if the two sums are unequal execution may be
taken out only by the holder of the decree for the larger sum and for so much
only as remains after deducting the smaller sum, and satisfaction for the
smaller sum shall be entered on the decree for the larger sum as well as
satisfaction on the decree for the smaller sum.
(2)
This rule shall be deemed to apply where
either party is an assignee of one of the decrees and as well in respect of
judgment-debts due by the original assignor as in respect of judgment-debts due
by the assignee himself.
(3)
This rule shall not be deemed to apply
unless—
(a)
the decree-holder in one of the suits in
which the decrees have been made is the judgment- debtor in the other and each
party files the same character in both suits; and
(b)
the sums due under the decrees are definite.
(4)
The holder of a decree passed against several
persons jointly and severally may treat it as a cross- decree in relation to a
decree passed against him singly in favour of one or more of such persons.
Illustrations
(a)
A holds a decree against B for Rs. 1,000. B
holds a decree against A for payment of Rs. 1,000 in case A fails to deliver
certain goods at a future day. B cannot treat his decree as a cross-decree
under this rule.
(b)
A and B, co-plaintiffs, obtain a decree for
Rs. 1,000. against C, and C obtains a decree for Rs. 1,000 against B. C cannot
treat his decree as a cross-decree under this rule.
A obtains a decree against B
for Rs. 1,000. C, who is a trustee for B, obtains a decree on behalf of B
against A for Rs. 1,000. B cannot treat C's decree as a cross-decree under this
rule.
A, B, C, D and E are jointly
and severally liable for Rs. 1,000 under a decree obtained by F. A obtains a
decree for Rs. 1,000 against F singly and applies for execution to the Court in
which the joint-decree is being executed. F may treat his joint-decree as
cross-decree under this rule.
Rule 19. Execution in case of cross-claims
under same decree
Where application is made to
a Court for the execution of a decree under which two parties are entitled to
recover sums of money from each other, then—
(a)
if the two sums are equal, satisfaction for
both shall be entered upon the decree; and
(b)
if the two sums are unequal, execution may be
taken out only by the party entitled to the larger sum and for so much only as
remains after deducting the smaller sum, and satisfaction for the smaller sum
shall be entered upon the decree.
Rule 20. Cross-decrees and cross-claims in
mortgage suits
The provisions contained in
rules 18 and 19 shall apply to decrees for sale in enforcement of a mortgage or
charge.
Rule 21. Simultaneous execution
The Court may, in its
discretion, refuse execution at the same time against the person and property
of the judgment-debtor.
Rule 22. Notice to show cause against
execution in certain cases
(1)
Where an application for execution is made—
(a)
more than [two
years] after the date of the decree, or
(b)
against the legal representative of a party
to the decree [or
where an application is made for execution of a decree filed under the
provisions of section 44A], [or]
[(c)
against the assignee or receiver in insolvency, where the party to the decree
has been adjudged to be an insolvent,]
the Court executing the
decree shall issue a notice to the person against whom execution is applied for
requiring him to show cause, on a date to be fixed, why the decree should not
be executed against him:
Provided that no such notice
shall be necessary in consequence of more than [two
years] having elapsed between the date of the decree and the application for
execution if the application is made within [two
years] from the date of the last order against the party against whom execution
is applied for, made on any previous application for execution, or in
consequence of the application being made against the legal representative of
the judgment-debtor if upon a previous application for execution against the
same person the Court has ordered execution to issue against him.
(2)
Nothing in the foregoing sub-rule shall be
deemed to preclude the Court from issuing any process in execution of a decree
without issuing the notice thereby prescribed, if, for reasons to be recorded,
it considers that the issue of such notice would cause unreasonable delay or
would defeat the ends of justice.
[Rule
22A. Sale not be set aside on the death of the judgment-debtor before the sale
but after the service of the proclamation of sale
Where any property is sold
in execution of a decree, the sale shall not be set aside merely by reason of
the death of the judgment-debtor between the date of issue of the proclamation
of sale and the date of the sale notwithstanding the failure of the
decree-holder to substitute the legal representative of such deceased
judgment-debtor, but, in case of such failure, the Court may set aside the sale
if it is satisfied that the legal representative of the deceased
judgment-debtor has been prejudiced by the sale.]
Rule 23. Procedure after issue of notice
(1)
Where the person to whom notice is issued
under [rule
22] does not appear or does not show cause to the satisfaction of the Court why
the decree should not be executed, the Court shall order the decree to be
executed.
(2)
Where such person offers any objection to the
execution of the decree, the Court shall consider such objection and make such
order as it thinks fit.
Process
for execution
Rule 24. Process for execution
(1)
When the preliminary measures (if any)
required by the foregoing rules have been taken, the Court shall, unless it
sees cause to the contrary, issue its process for the execution of the decree.
(2)
Every such process shall bear date the day on
which it is issued, and shall be signed by the Judge or such officer as the
Court may appoint in this behalf, and shall be sealed with the seal of the
Court and delivered to the proper officer to be executed.
[(3)
In every such process, a day shall be specified on or before which it shall be
executed and a day shall also be specified on or before which it shall be
returned to the Court, but no process shall be deemed to be void if no day for
its return is specified therein.]
Rule 25. Endorsement on process
(1)
The officer entrusted with the execution of
the process shall endorse thereon the day on, and the manner in, which it was
executed, and, if the latest day specified in the process for the return
thereof has been exceeded, the reason of the delay, or, if it was not executed,
the reason why it was not executed, and shall return the process with such
endorsement to the Court.
(2)
Where the endorsement is to the effect that
such officer is unable to execute the process, the Court shall examine him
touching his alleged inability, and may, if it thinks fit, summon and examine
witnesses as to such inability, and shall record the result.
Stay
of execution
Rule 26. When Court may stay execution
(1)
The Court to which a decree has been sent for
execution shall, upon sufficient cause being shown, stay the execution of such
decree for a reasonable time, to enable the judgment-debtor to apply to the
Court by which the decree was passed, or to any Court having appellate
jurisdiction in respect of the decree or the execution thereof, for an order to
stay execution, or for any other order relating to the decree or execution
which might have been made by such Court of first instance or Appellate Court if
execution had been issued thereby, or if application for execution had been
made thereto.
(2)
Where the property or person of the
judgment-debtor has been seized under an execution, the Court which issued the
execution may order the restitution of such property or the discharge of such
person pending the result of the application.
(3)
Power to require security from, or impose
conditions upon, judgment-debtor Before making an order to stay execution, or
for the restitution of property or the discharge of the judgment- debtor, [the
Court shall require] such security from, or impose such condition upon, the
judgment-debtor as it thinks fit.
Rule 27. Liability of judgment-debtor
discharged
No order of restitution or
discharge under rule 26 shall prevent the property or person of a
judgment-debtor from being retaken in execution of the decree sent for
execution.
Rule 28. Order of Court which passed decree
or of Appellate Court to be binding upon Court applied to
Any order of the Court by
which the decree was passed, or of such Court of appeal as aforesaid, in
relation to the execution of such decree, shall be binding upon the Court to
which the decree was sent for execution.
Rule 29. Stay of execution pending suit
between decree-holder and judgment-debtors
Where a suit is pending in
any Court against the holder of a decree of such Court [or
of a decree which is being executed by such Court, on the part of the person
against whom the decree was passed, the Court may, on such terms as to security
or otherwise, as it thinks fit, stay execution of the decree until the pending
suit has been decided:
[Provided
that if the decree is one for payment of money, the Court shall, if it grants
stay without requiring security, record its reasons for so doing.]
Mode
of execution
Rule 30. Decree for payment of money
Every decree for the payment
of money, including a decree for the payment of money as the alternative to
some other relief, may be executed by the detention in the civil prison of the
judgment-debtor, or by the attachment and sale of his property, or by both.
Rule 31. Decree for specific movable property
(1)
Where the decree is for any specific movable,
or for any share in a specific movable, it may be executed by the seizure, if
practicable, of the movable or share, and by the delivery thereof to the party
to whom it has been adjudged, or to such person as he appoints to receive
delivery on his behalf, or by the detention in the civil prison of the
judgment-debtor, or by the attachment of his property, or by both.
(2)
Where any attachment under sub-rule (1) has
remained in force for [three
months,] if the judgment-debtor has not obeyed the decree and the decree-holder
has applied to have the attached property sold, such property may be sold, and
out of the proceeds the Court may award to the decree- holder, in cases where
any amount has been fixed by the decree to be paid as an alternative to
delivery of movable property, such amount, and in other cases, such
compensation as it thinks fit, and shall pay the balance (if any) to the
judgment-debtor on his application.
(3)
Where the judgment-debtor has obeyed the
decree and paid all costs of executing the same which he is bound to pay, or
where, at the end of 3[three months] from the date of the attachment, no
application to have the property sold has been made, or, if made, has been
refused, the attachment shall cease.
Rule 32. Decree for specific performance for
restitution of conjugal rights, or for an injunction
(1)
Where the party against whom a decree for the
specific performance of a contract, or for restitution of conjugal rights, or
for an injunction, has been passed, has had an opportunity of obeying the
decree and has wilfully failed to obey it, the decree may be enforced [in
the case of a decree for restitution of conjugal rights by the attachment of
his property or, in the case of a decree for the specific performance of a
contract or for an injunction] by his detention in the civil prison, or by the
attachment of his property, or by both.
(2)
Where the party against whom a decree for
specific performance or for an injunction has been passed is a corporation, the
decree may be enforced by the attachment of the property of the corporation or,
with the leave of the Court, by the detention in the civil prison of the
directors or other principal officers thereof, or by both attachment and
detention.
(3)
Where any attachment under sub-rule (1) or
sub-rule (2) has remained in force for [six
months,] if the judgment-debtor has not obeyed the decree and the decree-holder
has applied to have the attached property sold, such property may be sold; and
out of the proceeds the Court may award to the decree- holder such compensation
as it thinks fit, and shall pay the balance (if any) to the judgment-debtor on
his application.
(4)
Where the judgment-debtor has obeyed the
decree and paid all costs of executing the same which he is bound to pay, or
where, at the end of 2[six months] from the date of the attachment no
application to have the property sold has been made, or if made has been
refused, the attachment shall cease.
(5)
Where a decree for the specific performance
of a contract or for an injunction has not been obeyed, the Court may, in lieu
of or in addition to all or any of the processes aforesaid, direct that the act
required to be done may be done so far as practicable by the decree-holder or
some other person appointed by the Court, at the cost of the judgment-debtor,
and upon the act being done the expenses incurred may be ascertained in such
manner as the Court may direct and may be recovered as if they were included in
the decree.
[Explanation
For the removal of doubts, it is hereby declared that the expression “the act
required to be done” covers prohibitory as well as mandatory injunctions.]
Illustration
A, a person of little
substance, erects a building which renders uninhabitable a family mansion
belonging to B. A, in spite of his detention in prison and the attachment of
his property, declines to obey a decree obtained against him by B and directing
him to remove the building. The Court is of opinion that no sum realizable by
the sale of A's property would adequately compensate B for the depreciation in
the value of his mansion. B may apply to the Court to remove the building and
may recover the cost of such removal from A in the execution-proceedings.
Rule 33. Discretion of Court in executing
decrees for restitution of conjugal rights
(1)
Notwithstanding anything in rule 32, the
Court, either at the time of passing a decree [against
a husband] for the restitution of conjugal rights or at any time afterwards,
may order that the decree [shall
be executed in the manner provided in this rule.]
(2)
Where the Court has made an order under
sub-rule (1) ***,
it may order that, in the event of the decree not being obeyed within such
period as may be fixed in this behalf, the judgment-debtor shall make to the
decree-holder such periodical payments as may be just, and, if it thinks fit,
require that the judgment-debtor shall, to its satisfaction, secure to the
decree-holder such periodical payments.
(3)
The Court may from time to time vary or
modify any order made under sub-rule (2) for the periodical payment of money,
either by altering the times of payment or by increasing or diminishing the
amount, or may temporarily suspend the same as to the whole or any part of the
money so ordered to be paid, and again review the same, either wholly or in
part as it may think just.
(4)
Any money ordered to be paid under this rule
may be recovered as though it were payable under a decree for the payment of
money.
Rule 34. Decree for execution of document, or
endorsement of negotiable instrument
(1)
Where a decree is for the execution of a
document or for the endorsement of a negotiable instrument and the
judgment-debtor neglects or refuses to obey the decree, the decree-holder may
prepare a draft of the document or endorsement in accordance with the terms of
the decree and deliver the same to the Court.
(2)
The Court shall there upon cause the draft to
be served on the judgment-debtor together with a notice requiring his
objections (if any) to be made within such time as the Court fixes in this
behalf.
(3)
Where the judgment-debtor objects to the
draft, his objections shall be stated in writing within such time, and the
Court shall make such order approving or altering the draft, as it thinks fit.
(4)
The decree-holder shall deliver to the Court
a copy of the draft with such alterations (if any) as the Court may have
directed upon the proper stamp-paper if a stamp is required by the law for the
time being in force; and the Judge or such officer as may be appointed in this
behalf shall execute the document so delivered.
(5)
The execution of a document or the
endorsement of a negotiable instrument under this rule may be in the following
form, namely:—
“C. D., Judge of the Court
of, (or as the case may be), for A. B., in a suit by E. F against A. B.”, and
shall have the same effect as the execution of the document or the endorsement
of the negotiable instrument by the party ordered to execute or endorse the
same.
[(6)
(a) Where the registration of the document is required under any law for the
time being in force, the Court, or such officer of the Court as may be
authorised in this behalf by the Court, shall cause the document to be
registered in accordance with such law.
(b) Where the registration of
the document is not so required, but the decree-holder desires it to be
registered, the Court may make such order as it thinks fit.
(c) Where the Court makes
any order for the registration of any document, it may make such order as it
thinks fit as to the expenses of registration.]
Rule 35. Decree for immovable property
(1)
Where a decree is for the delivery of any
immovable property, possession thereof shall be delivered to the party to whom
it has been adjudged, or to such person as he may appoint to receive delivery
on his behalf, and, if necessary, by removing any person bound by the decree
who refuses to vacate the property.
(2)
Where a decree is for the joint possession of
immovable property, such possession shall be delivered by affixing a copy of
the warrant in some conspicuous place on the property and proclaiming by beat
of drum, or other customary mode, at some convenient place, the substance of
the decree.
(3)
Where possession of any building on enclosure
is to be delivered and the person in possession, being bound by the decree,
does not afford free access, the Court, through its officers, may, after giving
reasonable warning and facility to any woman not appearing in public according
to the customs of the country to withdraw, remove or open any lock or bolt or
break open any door or do any other act necessary for putting the decree-holder
in possession.
Rule 36. Decree for delivery of immovable
property when in occupancy of tenant
Where a decree is for the
delivery of any immovable property in the occupancy of a tenant or other person
entitled to occupy the same and not bound by the decree to relinquish such
occupancy, the Court shall order delivery to be made by affixing a copy of the
warrant in some conspicuous place on the property, and proclaiming to the
occupant by beat of drum or other customary mode, at some convenient place, the
substance of the decree in regard to the property.
Rule 37. Discretionary power to permit
judgment-debtor to show cause against detention in prison
(1)
Notwithstanding anything in these rules,
where an application is for the execution of a decree for the payment of money
by the arrest and detention in the civil prison of a judgment-debtor who is
liable to be arrested in pursuance of the application, the Court [shall],
instead of issuing a warrant for his arrest, issue a notice calling upon him to
appear before the Court on a day to be specified in the notice and show cause
why he should not be committed to the civil prison:
[Provided
that such notice shall not be necessary if the Court is satisfied, by
affidavit, or otherwise, that, with the object or effect of delaying the
execution of the decree, the judgment-debtor is likely to abscond or leave the
local limits of the jurisdiction of the Court.]
(2)
Where appearance is not made in obedience to
the notice, the Court shall, if the decree-holder so requires, issue a warrant
for the arrest of the judgment-debtor.
Rule 38. Warrant for arrest to direct
judgment-debtor to be brought up
Every warrant for the arrest
of a judgment-debtor shall direct the officer entrusted with its execution to
bring him before the Court with all convenient speed, unless the amount which
he has been ordered to pay, together with the interest thereon and the costs
(if any) to which he is liable, be sooner paid.
Rule 39. Subsistence allowance
(1)
No judgment-debtor shall be arrested in
execution of a decree unless and until the decree-holder pays into Court such
sum as the Judge thinks sufficient for the subsistence of the judgment-debtor
from the time of his arrest until he can be brought before the Court.
(2)
Where a judgment-debtor is committed to the
civil prison in execution of a decree, the Court shall fix for his subsistence
such monthly allowance as he may be entitled to according to the scales fixed
under section 57, or, where no such scales have been fixed, as it considers
sufficient with reference to the class to which he belongs.
(3)
The monthly allowance fixed by the Court
shall be supplied by the party on whose application the judgement-debtor has
been arrested by monthly payments in advance before the first day of each
month.
(4)
The first payment shall be made to the proper
officer of the Court for such portion of the current month as remains unexpired
before the judgment-debtor is committed to the civil prison, and the subsequent
payments (if any) shall be made to the officer in charge of the civil prison.
(5)
Sums disbursed by the decree-holder for the
subsistence of the judgment-debtor in the civil prison shall be deemed to be
costs in the suit:
Provided that the
judgment-debtor shall not be detained in the civil prison or arrested on
account of any sum so disbursed.
[Rule
40. Proceedings on appearance of judgment-debtor in obedience to notice or
after arrest
(1)
When a judgment-debtor appears before the
Court in obedience to a notice issued under rule 37, or is brought before the
Court after being arrested in execution of a decree for the payment of money,
the Court shall proceed to hear the decree-holder and take all such evidence as
may be produced by him in support of his application for execution and shall
then give the judgment-debtor an opportunity of showing cause why he should not
be committed to the civil prison.
(2)
Pending the conclusion of the inquiry under
sub-rule (1) the Court may, in its discretion, order the judgment-debtor to be
detained in the custody of an officer of the Court or release him on his
furnishing security to the satisfaction of the Court for his appearance when
required.
(3)
Upon the conclusion of the inquiry under
sub-rule (1) the Court may, subject to the provisions of section 51 and to the
other provisions of this Code, make an order for the detention of the judgment-
debtor in the civil prison and shall in that event cause him to be arrested if
he is not already under arrest:
Provided that in order to
give the judgment-debtor an opportunity of satisfying the decree, the Court
may, before making the order of detention, leave the judgment-debtor in the
custody of an officer of the Court for a specified period not exceeding fifteen
days or release him on his furnishing security to the satisfaction of the Court
for his appearance at the expiration of the specified period if the decree be
not sooner satisfied.
(4)
A judgment-debtor released under this rule
may be re-arrested.
(5)
When the Court does not make an order of
detention under sub-rule (3) it shall disallow the application and, if the
judgment-debtor is under arrest, direct his release.]
Attachment
of property
Rule 41. Examination of judgment-debtor as to
his property
[(1)]
Where a decree is for the payment of money the decree-holder may apply to the
Court for an order that—
(a)
the judgment-debtor, or
(b)
[where
the judgment-debtor is a corporation], any officer thereof, or
(c)
any other person,be orally examined as to
whether any or what debts are owing to the judgment-debtor and whether the
judgment-debtor has any and what other property or means of satisfying the
decree; and the Court may make an order for the attendance and examination of
such judgment-debtor, or officer or other person, and for the production of any
books or documents.
[(2)
Where a decree for the payment of money has remained unsatisfied for a period
of thirty days, the Court may, on the application of the decree-holder and
without prejudice to its power under sub-rule (1), by order require the
judgment-debtor or where the judgment-debtor is a corporation, any officer
thereof, to make an affidavit stating the particulars of the assets of the
judgment-debtor.
(3)
In case of disobedience of any order made under sub-rule (2), the Court making
the order, or any Court to which the proceeding is transferred, may direct that
the person disobeying the order be detained in the civil prison for a term not
exceeding three months unless before the expiry of such term the Court directs
his release.]
Rule 42. Attachment in case of decree for
rent or mesne profits or other matter, amount of which to be subsequently
determined
Where a decree directs an
inquiry as to rent or mesne profits or any other matter, the property of the judgment-debtor
may, before the amount due from him has been ascertained, be attached, as in
the case of an ordinary decree for the payment of money.
Rule 43. Attachment of movable property,
other than agricultural produce, in possession of judgment-debtor
Where the property to be
attached is movable property other than agricultural produce, in the possession
of the judgement-debtor, the attachment shall be made by actual seizure, and
the attaching officer shall keep the property in his own custody or in the
custody of one of his subordinates, and shall be responsible for the due
custody thereof:
Provided that, when the
property seized is subject to speedy and natural decay, or when the expense of
keeping it in custody is likely to exceed its value, the attaching officer may
sell it at once.
[Rule
43A. Custody of movable property
(1)
Where the property attached consists of
live-stock, agricultural implements or other articles which cannot conveniently
be removed and the attaching officer does not act under the proviso to rule 43,
he may, at the instance of the judgment-debtor or of the decree holder or of
any other person claiming to be interested in such property, leave it in the
village or place where it has been attached, in the custody of any respectable
person (hereinafter referred to as the “custodian”).
(2)
If the custodian fails, after due notice, to
produce such property at the place named by the Court before the officer
deputed for the purpose or to restore it to the person in whose favour
restoration is ordered by the Court, or if the property, though so produced or
restored, is not in the same condition as it was when it was entrusted to him,—
(a)
the custodian shall be liable to pay
compensation to the decree-holder, judgment-debtor or any other person who is
found to be entitled to the restoration thereof, for any loss or damage caused
by his default; and
(b)
such liability may be enforced—
(i)
at the instance of the decree-holder, as if
the custodian were a surety under section 145;
(ii)
at the instance of the judgement-debtor or
such other person, on an application in execution; and
(c)
any order determining such liability shall be
appealable as a decree.]
Rule 44. Attachment of agricultural produce
Where the property to be
attached is agricultural produce, the attachment shall be made by affixing a
copy of the warrant of attachment,—
(a)
where such produce is a growing crop, on the
land on which such crop has grown, or
(b)
where such produce has been cut or gathered,
on the threshing floor or place for treading out grain or the like or
fodder-stack on or in which it is deposited,
and another copy on the
outer door or on some other conspicuous part of the house in which the
judgment-debtor ordinarily resides or, with the leave of the Court, on the
outer door or on some other conspicuous part of the house in which he carries
on business or personally works for gain or in which he is known to have last
resided or carried on business or personally worked for gain; and the produce
shall thereupon be deemed to have passed into the possession of the Court.
Rule 45. Provisions as to agricultural
produce under attachment
(1)
Where agricultural produce is attached, the
Court shall make such arrangements for the custody thereof as it may deem
sufficient and, for the purpose of enabling the Court to make such
arrangements, every application for the attachment of a growing crop shall
specify the time at which it is likely to be fit to be cut or gathered.
(2)
Subject to such conditions as may be imposed
by the Court in this behalf either in the order of attachment or in any
subsequent order, the judgment-debtor may tend, cut, gather and store the
produce and do any other act necessary for maturing or preserving it; and if
the judgment-debtor fails to do, all or any of such acts, the decree-holder
may, with the permission of the Court and subject to the like conditions, do
all or any of them either by himself or by any person appointed by him in this
behalf and the costs incurred by the decree-holder shall be recoverable from
the judgment-debtor as if they were included in, or formed part of, the decree.
(3)
Agricultural produce attached as a growing
crop shall not be deemed to have ceased to be under attachment or to require
re-attachment merely because it has been served from the soil.
(4)
Where an order for the attachment of a
growing crop has been made at a considerable time before the crop is likely to
be fit to be cut or gathered, the Court may suspend the execution of the order
for such time as it thinks fit, and may, in its discretion, make a further
order prohibiting the removal of the crop pending the execution of the order of
attachment.
(5)
A growing crop which from its nature does not
admit of being stored shall not be attached under this rule at any time less
than twenty days before the time at which it is likely to be fit to be cut or
gathered.
Rule 46. Attachment of debt, share and other
property not in possession of judgment-debtor
(1)
In the case of—
(a)
a debt not secured by a negotiable
instrument,
(b)
a share in the capital of a corporation,
(c)
other movable property not in the possession
of the judgment-debtor, except property deposited in, or in the custody of, any
Court, the attachment shall be made by a written order prohibiting,—
(i)
in the case of the debt, the credit or from
recovering the debt and the debtor from making payment thereof until the
further order of the Court;
(ii)
in the case of the share, the person in whose
name the share may be standing from transferring the same or receiving any
dividend thereon;
(iii)
in the case of the other movable property
except as aforesaid, the person in possession of the same from giving it over
to the judgement-debtor.
(2)
A copy of such order shall be affixed on some
conspicuous part of the court-house, and another copy shall be sent in the case
of the debt, to the debtor, in the case of the share, to the proper officer of
the corporation, and, in the case of the other movable property (except as
aforesaid), to the person in possession of the same.
(3)
A debtor prohibited under clause (i) of
sub-rule (1) may pay the amount of his debt into Court, and such payment shall
discharge him as effectually as payment to the party entitled to receive the
same.
[Rule
46A. Notice to garnishee
(1)
The Court may in the case of a debt (other
than a debt secured by a mortgage or a charge) which has been attached under
rule 46 upon the application of the attaching creditor, issue notice to the
garnishee liable to pay such debt, calling upon him either to pay into Court
the debt due from him to the judgment-debtor or so much thereof as may be
sufficient to satisfy the decree and costs of execution, or to appear and show
cause why he should not do so.
(2)
An application under sub-rule (1) shall be
made on affidavit verifying the facts alleged and stating that in the belief of
the deponent, the garnishee is indebted to the judgment-debtor.
(3)
Where the garnishee pays in the Court the
amount due from him to the judgment-debtor or so much thereof as is sufficient
to satisfy the decree and the costs of the execution, the Court may direct that
the amount may be paid to the decree-holder towards satisfaction of the decree
and costs of the execution.
Rule 46B. Order against garnishee
Where the garnishee does not
forthwith pay into Court the amount due from him to the judgment-debtor or so
much thereof as is sufficient to satisfy the decree and the costs of execution,
and does not appear and show cause in answer to the notice, the Court may order
the garnishee to comply with the terms of such notice, and on such order,
execution may issue as though such order were a decree against him.
Rule 46C. Trial of disputed questions
Where the garnishee disputes
liability, the Court may order that any issue of question necessary for the
determination of liability shall be tried as if it where an issue in a suit, and
upon the determination of such issue shall make such order or orders as it
deems fit:
Provided that if the debt in
respect of which the application under rule 46A is made is in respect of a sum
of money beyond the pecuniary jurisdiction of the Court, the Court shall send
the execution case to the Court of the District Judge to which the said Court
is subordinate, and thereupon the Court of the District Judge or any other
competent Court to which it may be transferred by the District Judge shall deal
with it in the same manner as if the case had been originally instituted in
that Court.
Rule 46D. Procedure where debt belongs to
third person
Where it is suggested or
appears to be probable that the debt belongs to some third person, or that any
third person has a lien or charge on, or other interest in such debt, the Court
may order such third person to appear and state the nature and particulars of
his claim, if any, to such debt and prove the same.
Rule 46E. Order as regards third person
After hearing such third
person and any person or persons who may subsequently be ordered to appear, or
where such third or other person or persons do not appear when so ordered, the
Court may make such order as is hereinbefore provided, or such other order or
orders upon such terms, if any, with respect to the lien, charge or interest,
as the case may be, of such third or other person or persons as it may deem fit
and proper.
Rule 46F. Payment by garnishee to be valid
discharge
Payment made by the
garnishee on notice under rule 46A or under any such order as aforesaid shall
be a valid discharge to him as against the judgement-debtor and any other
person ordered to appear as aforesaid for the amount paid or levied, although
the decree in execution of which the application under rule 46A was made, or
the order passed in the proceedings on such application may be set aside or
reversed.
Rule 46G. Costs
The costs of any application
made under rule 46A and of any proceeding arising there from or incidental
thereto shall be in the discretion of the Court.
Rule 46H. Appeals
An order made under rule
46B, rule 46C or rule 46E shall be applicable as a decree.
Rule 46-I Application to negotiable
instruments
The provisions of rules 46A
to 46H (both inclusive) shall, so far as may be, apply in relation to
negotiable instruments attached under rule 51 as they apply in relation to
debts.]
Rule 47. Attachment of share in movables
Where the property to be
attached consists of the share or interest of the judgment-debtor in movable
property belonging to him and another as co-owners, the attachment shall be
made by a notice to the judgment-debtor prohibiting him from transferring the
share or interest or charging it in any way.
Rule 48. Attachment of salary or allowances
of servant of the Government or railway company or local authority
(1)
Where the property to be attached is the
salary or allowances of a [servant
of the Government] or of a servant of a railway company or local authority [or
of a servant of a corporation engaged in any trade or industry which is
established by a Central, Provincial or State Act, or a Government company as
defined in section 617 of the Companies Act, 1956 (1 of 1956)] the Court,
whether the judgment-debtor or the disbursing officer is or is not within the local
limits of the Court’s jurisdiction, may order that the amount shall, subject to
the provisions of section 60, be withheld from such salary or allowances either
in one payment or by monthly instalments as the Court may direct; and upon
notice of the order to such officer as [the
appropriate Government may by notification in the Official Gazette] appoint [in
this behalf,—
(a)
where such salary or allowances are to be
disbursed within the local limits to which this Code for the time being
extends, the officer or other person whose duty it is to disburse the same
shall withhold and remit to the Court the amount due under the order, or the
monthly instalments, as the case may be;
(b)
where such salary or allowances are to be
disbursed beyond the said limits, the officer or other person within those
limits whose duty it is to instruct the disbursing authority regarding the
amount of the salary or allowances to be disbursed shall remit to the Court the
amount due under the order, or the monthly instalments, as the case may be, and
shall direct the disbursing authority to reduce the aggregate of the amounts
from time to time, to be disbursed by the aggregate of the amounts from time to
time remitted to the Court.]
(2)
Where the attachable proportion of such
salary or allowances is already being withheld and remitted to a Court in
pursuance of a previous and unsatisfied order of attachment, the officer
appointed by [the
appropriate Government] in this behalf shall forthwith return the subsequent
order to the Court issuing it with a full statement of all the particulars of
the existing attachment.
[(3)
Every order made under this rule, unless it is returned in accordance with the
provisions of sub-rule (2) shall, without further notice or other process, bind
the appropriate Government or the railway company or local authority or
corporation of Government company, as the case may be, while the judgement-
debtor is within the local limits to which this Code for the time being extends
and while he is beyond those limits, if he is in receipt of any salary or
allowances payable out of the Consolidated Fund of India or the Consolidated
Fund of the State or the funds of a railway company or local authority or
corporation or Government company in India; and the appropriate Government or
the railway company or local authority or corporation or Government company, as
the case may be, shall be liable for any sum paid in contravention of this
rule.]
[Explanation
In this rule, “appropriate Government” means,—
(i)
As respects any person in the service of the
Central Government, or any servant of a railway administration or of a
cantonment authority or of the port authority of a major port, or any servant
of a corporation engaged in any trade or industry which is established by a
Central Act, or any servant of a Government company in which any part of the
share capital is held by the Central Government or by more than one State
Governments or partly by the Central Government and partly by one or more State
Governments, the Central Government;
(ii)
As respects any other servant of the
Government, or a servant of any other local or other authority, or any servant
of a corporation engaged in any trade or industry which is established by a
Provincial or State act, or a servant of any other Government company, the
State Government.]
[Rule
48A. Attachment of salary or allowances of private employees
(1)
Where the property to be attached is the
salary or allowances of an employee other than an employee to whom rule 48
applies, the Court, where the disbursing officer of the employee is within the
local limits of the Court’s jurisdiction, may order than the amount shall,
subject to the provision of section 60, be withheld from such salary or
allowances either in one payment or by monthly instalments as the Court may
direct; and upon notice of the order to such disbursing officer, such
disbursing officer shall remit to the court the amount due under the order, or
the monthly instalments, as the case may be.
(2)
Where the attachable portion of such salary
or allowances is already being withheld or remitted to the Court in pursuance
of a previous and unsatisfied order of attachment, the disbursing officer shall
forthwith return the subsequent order to the Court issuing it with a full
statement of all the particulars of the existing attachment.
(3)
Every order made under this rule, unless it
is returned in accordance with the provisions of sub-rule (2), shall, without
further notice or other process, hind the employer while the judgment- debtors,
is within the local limits to which this Code for the time being extends and
while he is beyond those-limits, if he is in receipt of salary or allowances
payable out of the funds of an employer in any part of India, and the employer
shall be liable for any sum paid in contravention of this rule.]
Rule 49. Attachment of partnership property
(1)
Save as otherwise provided by this rule,
property belonging to a partnership shall not be attached or sold in execution
of a decree other than a decree passed against the firm or against the partners
in the firm as such.
(2)
The Court may, on the application of the
holder of a decree against a partner, make an order charging the interest of
such partner in the partnership property, and profits with payment of the
amount due under the decree, and may, by the same or a subsequent order,
appoint a receiver of the share of such partner in the profits (whether already
declared or accruing) and of any other money which may be coming to him in
respect of the partnership, and direct accounts and inquiries and make an order
for the sale of such interest or other orders as might have been directed or
made if a charge had been made in favour of the decree holder by such partner,
or as the circumstances of the case may require.
(3)
The other partner or partners shall be at
liberty at any time to redeem the interest charged or, in the case of a sale
being directed, to purchase the same.
(4)
Every application for an order under sub-rule
(2) shall be served on the judgment-debtor and on his partners or such of them
as are within [India].
(5)
Every application made by any partner of the
judgment-debtor under sub-rule (3) shall be served on the decree-holder and on
the judgment-debtor, and on such of the other partners as do not join in the
application and as are within [India].
(6)
Service under sub-rule (4) or sub-rule (5)
shall be deemed to be service on all the partners and all orders made on such
applications shall be similarly served.
Rule 50. Execution of decree against firm
(1)
Where a decree has been passed against a
firm, execution may be granted—
(a)
against any property of the partnership;
(b)
against any person who has appeared in his
own name under rule 6 or rule 7 of Order XXX or who has admitted on the
pleadings that he is, or who has been adjudged to be, a partner;
(c)
against any person who has been individually
served as a partner with a summons and has failed to appear:
Provided that nothing in
this sub-rule shall be deemed to limit or otherwise affect the provisions of [section
30 of the Indian Partnership Act, 1932 (9 of 1932)].
(2)
Where the decree-holder claims to be entitled
to cause the decree to be executed against any person other than such a person
as is referred to in sub-rule (1), clauses (b) and (c), as being a partner in
the firm, he may, apply to the Court which passed the decree for leave, and
where the liability is not disputed, such court may grant such leave, or, where
such liability is disputed, may order that the liability of such person be
tried and determined in any manner in which any issue in a suit may be tried
and determined.
(3)
Where the liability of any person has been
tried and determined under sub-rule (2), the order made thereon shall have the
same force and be subject to the same conditions as to appeal or otherwise as
if it were a decree.
(4)
Save as against any property of the
partnership, a decree against a firm shall not lease, render liable or
otherwise affect any partner therein unless he has been served with a summons
to appear and answer.
[(5)
Nothing in this rule shall apply to a decree passed against a Hindu Undivided
Family by virtue of the provisions of rule 10 of Order XXX.]
Rule 51. Attachment of negotiable instruments
Where the property is a
negotiable instrument not deposited in a Court, not in the custody of a public
officer, the attachment shall be made by actual seizure, and the instrument
shall be brought into Court and held subject to further orders of the Court.
Rule 52. Attachment of property in custody of
Court or public officer
Where the property to be
attached is in the custody of any Court or public officer, the attachment shall
be made by a notice to such Court or officer, requesting that such property,
and any interest or dividend becoming payable thereon, may be held subject to
the further orders of the Court from which the notice is issued:
Provided that, where such
property is in the custody of a Court, any question of title or priority
arising between the decree-holder and any other person, not being the
judgment-debtor, claiming to be interested in such property by virtue of any
assignment, attachment or otherwise, shall be determined by such Court.
Rule 53. Attachment of decrees
(1)
Where the property to be attached is a
decree, either for the payment of money or for sale in enforcement of a mortgage
or charge, the attachment shall be made,—
(a)
if the decrees were passed by the same Court,
then by Order of such Court, and
(b)
if the decree sought to be attached was
passed by another Court, then by the issue to such other Court of a notice by
the Court which passed the decree sought to be executed, requesting such other
Court to stay the execution of its decree unless and until—
(i)
the court which passed the decree sought to
be executed cancels the notice, or
[(ii)
(a) the holder of the decree sought to be executed, or
(b) his judgment-debtor with
the previous consent in writing of such decree-holder, or with the permission
of the attaching Court, applies to the Court receiving such notice to execute
the attached decree.]
(2)
Where a Court makes an order under clause (a)
of sub-rule (1), or receives an application under sub-head (ii) of clause (b)
of the said sub-rule, it shall, on the application of the creditor who has
attached the decree or his judgment-debtor, proceeds to execute the attached
decree and apply the net proceeds in satisfaction of the decree sought to be
executed.
(3)
The holder of a decree sought to be executed
by the attachment of another of decree the nature specified in sub-rule (1)
shall be deemed to be the representative of the holder of the attached decree
and to be entitled to execute such attached decree in any manner lawful for the
holder thereof.
(4)
Where the property to be attached in the
execution of a decree is a decree other than a decree of the nature referred to
in sub-rule (1), the attachment shall be made, by a notice by the Court which
passed the decree sought to be executed, to the holder of the decree sought to
be attached, prohibiting him from transferring or charging the same in any way,
and, where such decree has been passed by any other Court, also by sending to
such other Court a notice to abstain from executing the decree sought to be
attached until such notice is cancelled by the Court from which it was sent.
(5)
The holder of a decree attached under this
rule shall give the Court executing the decree such information and aid as may
reasonably be required.
(6)
On the application of the holder of a decree
sought to be executed by the attachment of another decree, the Court making an
order of attachment under this rule shall give notice of such order to the
judgment-debtor bound by the decree attached; and no payment or adjustment of
the attached decree made by the judgment-debtor in contravention of such order
2[with knowledge thereof or] after receipt of notice thereof, either through
the Court or otherwise, shall be recognized by any Court so long as the
attachment remains in force.
Rule 54. Attachment of immovable property
(1)
Where the property is immovable, the
attachment shall be made by an order prohibiting the judgment-debtor from
transferring or charging the property in any way, and all persons from taking
any benefit from such transfer of charge.
[(1A)
The order shall also require the judgment-debtor to attend Court on a specified
date to take notice of the date to be fixed for settling the terms of the
proclamation of sale.]
(2)
The order shall be proclaimed at some place
on or adjacent to such property by beat of drum or other customary mode, and a
copy of the order shall be affixed on a conspicuous part of the property and
then upon, a conspicuous part of the Court-house, and also, where the property
is land paying revenue to the Government, in the office of the Collector of the
district in which the land is situate 2[and, where the property is land situate
in a village, also in the office of the Gram Panchayat, if any, having
jurisdiction over that village.]
Rule 55. Removal of attachment after
satisfaction of decree
Where—
(a)
the amount decreed with costs and all charges
and expenses resulting from the attachment of any property are paid into Court,
or
(b)
satisfaction of the decree is otherwise made
through the Court or certified to the Court, or
(c)
the decree is set aside or reversed, the
attachment shall be deemed to be withdrawn, and, in the case of immovable
property, the withdrawal shall, if the judgment-debtor so desires, be
proclaimed at his expense, and a copy of the proclamation shall be affixed in
the manner prescribed by the last preceding rule.
Rule 56. Order for payment of coin or
currency notes to party entitled under decree
Where the property attached
is current coin or currency notes, the Court may, at any time during the
continuance of the attachment, direct that such coin or notes, or a part
thereof sufficient to satisfy the decree, be paid over to the party entitled under
the decree to receive the same.
Rule 57. [Determination of attachment
(1)
Where any property has been attached in
execution of a decree and the Court, for any reason, passes an order dismissing
the application for the execution of the decree, the Court shall direct whether
the attachment shall continue or cease and shall also indicate the period up to
which such attachment shall continue or the date on which such attachment shall
cease.
(2)
If the Court omits to give such direction,
the attachment shall be deemed to have ceased.]
[Adjudication
of claims and objections
Rule 58. Adjudication of claims to or
objections to attachment of, property
(1)
Where any claim is preferred to, or any
objection is made to the attachment of, any property attached in execution of a
decree on the ground that such property is not liable to such attachment, the
Court shall proceed to adjudicate upon the claim or objection in accordance
with the provisions herein contained:
Provided that no such, claim
or objection shall be entertained—
(a)
where, before the claim is preferred or
objection is made, the property attached has already been sold; or
(b)
where the Court considers that the claim or
objection was designedly or unnecessarily delayed.
(2)
All questions (including questions relating
to right, title or interest in the property attached) arising between the
parties to a proceeding or their representatives under this rule and relevant
to the adjudication of the claim or objection, shall be determined by the Court
dealing with the claim or objection and not by a separate suit.
(3)
Upon the determination of the questions
referred to in sub-rule (2), the Court shall, in accordance with such
determination,—
(a)
allow the claim or objection and release the
property from attachment either wholly or to such extent as it thinks fit; or
(b)
disallow the claim or objection; or
(c)
continue the attachment subject to any
mortgage, charge or other interest in favour of any person; or
(d)
pass such order as in the circumstances of
the case it deems fit.
(4)
Where any claim or objection has been
adjudicated upon under this rule, order made thereon shall have the same force
and be subject to the same conditions as to appeal or otherwise as if it were a
decree.
(5)
Where a claim or an objection is preferred
and the Court, under the proviso to sub-rule (I), refuses to entertain it, the
party against whom such order is made may institute a suit to establish the
right which he claims to the property in dispute; but, subject to the result of
such-suit, if any, an order so refusing to entertain the claim or objection
shall be conclusive.
Rule 59. Stay of sale
Where before the claim was
preferred or the objection was made, the property attached had already been
advertised for sale, the Court may—
(a)
if the property is movable, make an order
postponing the sale pending the adjudication of the claim or objection, or
(b)
if the property is immovable, make an order
that, pending the adjudication of the claim or objection, the property shall
not be sold, or that pending such adjudication, the property may be sold but
the sale shall not be confirmed,
and any such order may be
made subject to such terms and conditions as to security or otherwise as the
Court thinks fit.]
Rule 60. [Release of property from
attachment.]
Omitted by the Code of Civil
Procedure (Amendment) Act, 1976 (104 of 1976), s. 72 (w.e.f. 1-2-1977).
Rule 61. [Disallowance of claim to property
attached.]
omitted by s. 72, ibid.
(w.e.f. 1-2-1977).
Rule 62. [Continuance of attachment subject
to claim of incumbrancer.]
omitted by s. 72, ibid.
(w.e.f. 1-2- 1977).
Rule 63. [Saving of suits to establish right
to attached property.]
omitted by s. 72, ibid.
(w.e.f. 1-2-1977).]
Rule 64. Power to order property attached to
be sold and proceeds to be paid to person entitled.
Any Court executing a decree
may order that any property attached by it and liable to sale, or such portion
thereof as may see necessary to satisfy the decree, shall be sold, and that the
proceeds of such sale, or a sufficient portion thereof, shall be paid to the
party entitled under the decree to receive the same.
Rule 65. Sales by whom conducted and how made
Save as otherwise
prescribed, every sale in execution of a decree shall be conducted by an
officer of the Court or by such other person as the Court may appoint in this
behalf, and shall be made by public auction in manner prescribed.
Rule 66. Proclamation of sales by public
auction
(1)
Where any property is ordered to be sold by
public auction in execution of a decree, the Court shall cause a proclamation
of the intended sale to be made in the language of such Court.
(2)
Such proclamation shall be drawn up after
notice to the decree-holder and the judgment-debtor and shall state the time
and place of sale, and specify as fairly and accurately as possible—
(a)
the property to be sold [or,
where a part of the property would be sufficient to satisfy the decree, such
part];
(b)
the revenue assessed upon the estate or past
of the estate, where the property to be sold is an interest in an estate or in
part of an estate paying revenue to the Government;
(c)
any incumbrance to which the property is
liable;
(d)
the amount for the recovery of which the sale
is ordered; and
(e)
every other thing which the Court considers
material for a purchaser to know in order to judge of the nature and value of
the property:
[Provided
that where notice of the date for settling the terms of the proclamation has
been given to the judgment-debtor by means of an order under rule 54, it shall
not be necessary to give notice under this rule to the judgment-debtor unless the
Court otherwise directs:
Provided further that
nothing in this rule shall be construed as requiring the Court to enter in the
proclamation of sale its own estimate of the value of the property, but the
proclamation shall include the estimate, if any, given, by either or both of
the Parties.
(3)
Every application for an order for sale under
this rule shall be accompanied by a statement signed and verified in the manner
hereinbefore prescribed for the signing and verification of pleadings and
containing, so far as they are known to or can be ascertained by the person
making the varification, the matters required by sub-rule (2) to be specified
in the proclamation.
(4)
For the purpose of ascertaining the matters
to be specified in the proclamation, the Court may summon any person whom it
thinks necessary to summon and may examine him in respect to any such matters
and require him to produce any document in his possession or power relating
thereto.
Rule 67. Mode of making proclamation
(1)
Every proclamation shall be made and
published, as nearly as may be, in the manner prescribed by rule 54, sub-rule
(2).
(2)
Where the Court so directs, such proclamation
shall also be published in the Official Gazette or in a local newspaper, or in
both, and the costs of such publication shall be deemed to be costs of the
sale.
(3)
Where property is divided into lots for the
purpose of being sold separately, it shall not be necessary to make a separate
proclamation for each lot, unless proper notice of the sale cannot, in the
opinion of the Court, otherwise be given.
Rule 68. Time of sale
Save in the case of property
of the kind described in the proviso to rule 43, no sale hereunder shall,
without the consent in writing of the judgment-debtor, take place until after
the expiration of at least [fifteen
days] in the case of immovable property, and of at least [seven
days] in the case of movable property, calculated from the date on which the
copy of the proclamation has been affixed on the court-house of the Judge
ordering the sale.
Rule 69. Adjournment or stoppage of sale
(1)
The Court may, in its discretion, adjourn any
sale hereunder to a specified day and hour, and the officer conducting any such
sale may in his discretion adjourn the sale, recording his reasons for such
adjournment:
Provided that, where the
sale is made in, or within the precincts of, the court-house, no such
adjournment shall be made without the leave of the Court.
(2)
Where a sale is adjourned under sub-rule (1)
for a longer period than [thirty]
days afresh proclamation under rule 67 shall be made, unless the
judgment-debtor consents to waive it.
(3)
Every sale shall be stopped if, before the
lot is knocked down, the debt and costs (including the costs of the sale) are
tendered to the officer conducting the sale, or proof is given to his
satisfaction that the amount of such debt and costs has been paid into the
Court which ordered the sale.
Rule 70. [Saving of certain sales.]
Omitted by the Code of Civil
Procedure (Amendment) Act, 1956 (66 of 1956), s. 14 (w.e.f. 1-1-1957).
Rule 71. Defaulting purchaser answerable for
loss on re-sale
Any deficiency of price
which may happen on a re-sale by reason of the purchaser's default, and all
expenses attending such re-sale, shall be certified to the Court ***
by the officer or other person holding the sale, and shall, at the instance of
either the decree-holder or the judgment-debtor, be recoverable from the
defaulting purchaser under the provisions relating to the execution of a decree
for the payment of money.
Rule 72. Decree holder not to bid for or buy
property without permission
(1)
No holder of a decree in execution of which
property is sold shall, without the express permission of the Court, bid for or
purchase the property.
(2)
Where decree-holder purchases, amount of
decree may be taken as payment Where a decree-holder purchases with such
permission, the purchase-money and the amount due on the decree may, subject to
the provisions of section 73, be set off against one another, and the Court
executing the decree shall enter up satisfaction of the decree in whole or in
part accordingly.
(3)
Where a decree-holder purchases, by himself
or through another person, without such permission, the Court may, if it thinks
fit, on the application of the judgment-debtor or any other person whose
interests are affected by the sale, by order set aside the sale; and the costs
of such application and order, and any deficiency of price which may happen on
the re-sale and all expenses attending it, shall be paid by the decree- holder.
Rule 72A. Mortgagee not to bid at sale
without the leave of the Court.
(1)
Notwithstanding anything contained in rule
72, a mortgagee of immovable property shall not bid for or purchase property
sold in execution of a decree on the mortgage unless the Court grants him leave
to bid for or purchase the property.
(2)
If leave to bid is granted to such mortgagee,
then the Court shall fix a reserve price as regards the mortgagee, and unless
the Court otherwise directs, the reserve price shall be—
(a)
not less than the amount then due for
principal, interest and costs in respect of the mortgage if the property is
sold in one lot; and
(b)
in the case of any property sold in lots, not
less than such sum as shall appear to the Court to be properly attributable to
each lot in relation to the amount then due for principal, interest and costs
on the mortgage.
(3)
In other respects, the provisions of
sub-rules (2) and (3) of rule 72 shall apply in relation to purchase by the
decree-holder under that rule.]
Rule 73. Restriction on bidding or purchase
by officers.
No officer or other person
having any duty to perform in connection with any sale shall, either directly
or indirectly, bid for, acquire or attempt to acquire any interest in the
property sold.
Sale
of movable property
Rule 74. Sale of agricultural produce.
(1)
Where the property to be sold is agricultural
produce, the sale shall be held,-
(a)
if such produce is a growing crop, on or near
the land on which such crop has grown, or
(b)
if such produce has been cut or gathered, at
or near-the threshing floor or place for trading out grain or the like or
fodder-stack on or in which it is deposited:
Provided that the Court may
direct the sale to be held at the nearest place of public resort, if it is of
opinion that the Produce is thereby likely to sell to greater advantage.
(2)
Where, on the produce being put up for sale,—
(a)
a fair price, in the estimation of the person
holding the sale, is not offered for it, and
(b)
the owner of the produce or a person
authorized to act in his behalf applies to have the sale postponed till next day
or, if a market is held at the place of sale, the next market-day, the sale
shall be postponed accordingly and shall be then completed, whatever price may
be offered for the produce.
Rule 75. Special provisions relating to
growing crops.
(1)
Where the property to be sold is a growing
crop and the crop from its nature admits of being stored but has not yet been
stored, the day of the sale shall be so fixed as to admit of its being made
ready for storing before the arrival of such day, and the sale shall not be
held until the crop has been cut or gathered and is ready for storing.
(2)
Where the crop from its nature does not admit
of being stored, it may be sold before it is cut and gathered, and the
purchaser shall be entitled to enter on the land, and to do all that is
necessary for the purpose of tending and cutting or gathering it.
Rule 76. Negotiable instruments and shares in
corporations.
Where the property to be
sold is a negotiable instrument or a share in a corporation, the Court may,
instead of directing the sale to be made by public auction, authorized the sale
of such instrument or share through a broker.
Rule 77. Sale by public auction.
(1)
Where movable property is sold by public
auction the price of each lot shall be paid at the time of sale or as soon after
as the officer or other person holding the sale directs, and in default of
payment the property shall forthwith be re-sold.
(2)
On payment of the purchase-money, the officer
or other person holding the sale shall grant a receipt for the same, and the
sale shall become absolute.
(3)
Where the movable property to be sold is a
share in goods belonging to the judgment-debtor and a co-owner, and two or more
persons, of whom one is such co-owner, respectively bid the same sum for such
property or for any lot, the bidding shall be deemed to be the bidding of the
co-owner.
Rule 78. Irregularity not to vitiate sale,
but any person injured may sue.
No irregularity in
publishing or conducting the sale of movable property shall vitiate the sale;
but any person sustaining any injury by reason of such irregularity at the hand
of any other person may institute a suit against him for compensation or (if
such other person is the purchaser) for the recovery of the specific property
and for compensation in default of such recovery).
Rule 79. Delivery of movable property, debts
and shares.
(1)
Where the property sold is movable property
of which actual seizure has been made, it shall be delivered to the purchaser.
(2)
Where the property sold is movable property
in the possession of some person other than the judgment-debtor, the delivery
thereof to the purchaser shall be made by giving notice to the person in
possession prohibiting him from delivering possession of the property to any
person except the purchaser.
(3)
Where the property sold is a debt not secured
by a negotiable instrument, or is a share in a corporation, the delivery
thereof shall be made by a written order of the Court prohibiting the creditor
from receiving the debt or any interest thereon, and the debtor from making
payment thereof to any person except the purchaser, or prohibiting the person
in whose name the share, may be standing from making any transfer of the share
to any person except the purchaser, or receiving payment of any dividend or
interest thereon, and the manager, secretary or other proper officer of the
corporation from permitting any such transfer or making any such payment to any
person except the purchaser.
Rule 80. Transfer of negotiable instruments
and shares.
(1)
Where the execution of a document or the endorsement
of the party in whose name a negotiable instrument or a share in a corporation
is standing is required to transfer such negotiable instrument or, share the
Judge or such officer as he may appoint in this behalf may execute such
document or make such endorsement as may be necessary, and such execution or
endorsement shall have the same effect as an execution or endorsement by the
party.
(2)
Such execution or endorsement may be in the
following form, namely:-
A. B. by C.D. Judge of the
Court of (or as the case may be) , in a suit by E. F. against A.B.
(3) Until
the transfer of such negotiable instrument or share, the Court may, by order,
appoint some person to receive any interest or dividend due thereon and to sign
a receipt for the same; and any receipt so signed shall be as valid and
effectual for all purposes as if the same had been signed by the party himself.
Rule 81. Vesting order in case of other
property.
In the case of any movable
property not hereinbefore provided for, the Court may make an order vesting
such property in the purchaser or as he may direct; and such property shall
vest accordingly.
Sale
of immovable property
Rule 82. What Court may order sales.
Sales of immovable property
in execution of decrees may be ordered by any Court other than a Court of Small
Causes.
Rule 83. Postponement of sale to enable
judgment-debtor to raise amount of decree.
(1)
Where an order for the sale of immovable
property has been made, if the judgment-debtor can satisfy the Court that there
is reason to believe that the amount of the decree may be raised by the
mortgage or lease or private sale of such property, or some part thereof, or of
any other immovable property of the judgment-debtor, the Court may, on his
application, postpone the sale of the property comprised in the order for sale
on such terms and for such period as it thinks proper, to enable him to raise
the amount.
(2)
In such case the Court shall grant a
certificate to the judgment-debtor authorizing him within a period to be
mentioned therein, and notwithstanding anything contained in section 64, to
make the proposed mortgage, lease or sale:
Provided that all moneys
payable under such mortgage, lease or sale shall be paid, not to the
judgment-debtor, but, save in so far as a decree-holder is entitled to set-off
such money under the provisions of rule 72, into Court:
Provided also that not
mortgage, lease or sale under this rule shall become absolute until it has been
confirmed by the Court.
(3)
Nothing in this rule shall be deemed to apply
to a sale of property directed to be sole in execution of a decree for sale in
enforcement of a mortgage of, or charge on, such property.
Rule 84. Deposit by purchaser and re-sale on
default.
(1)
On every sale of immovable property the
person declared to be the purchaser shall pay immediately after such
declaration a deposit of twenty-five per cent. on the amount of his
purchase-money to the officer or other person conducting the sale, and in
default of such deposit, the property shall forthwith be re-sold.
(2)
Where the decree-holder is the purchaser and
is entitled to set-off the purchase-money under rule 72, the Court may dispense
with the requirements of this rule.
Rule 85. Time for payment in full of purchase
money.
The full amount of
purchase-money payable shall be paid by the purchaser into Court before the
Court closes on the fifteenth day from the sale of the property:
Provided that, in
calculating the amount to be so paid into Court, the purchaser shall have the
advantage of any set-off to which he may be entitled under rule 72.
Rule 86. Procedure in default of payment.
In default of payment within
the period mentioned in the last preceding rule, the deposit may, if the Court
thinks fit, after defraying the expenses of the sale, be forfeited to the
Government, and the property shall be re-sold, and the defaulting purchaser
shall forfeit all claim to the property or to any part of the sum for which it
may subsequently be sold.
Rule 87. Notification on re-sale.
Every re-sale of immovable
property, in default of payment of the purchase-money within the period allowed
for such payment, shall be made after the issue of fresh proclamation in the
manner and for the period hereinbefore prescribed for the sale.
Rule 88. Bid of co-sharer to have preference.
Where the property sold is a
share of undivided immovable property and two or more persons, of whom one is a
co-sharer, respectively bid the same sum for such property or for any lot, the
bid shall be deemed to be the bid of the co-sharer.
Rule 89. Application to set aside sale on deposit.
(1)
Where immovable property has been sold in
execution of a decree, [any
person claiming an interest in the property sold at the time of the sale or at
the time of making the application, or acting for or in the interest of such
person,] may apply to have the sale set aside on his depositing in Court,—
(a)
for payment to the purchaser, a sum equal to
five per cent. of the purchase-money, and
(b)
for payment, to the decree-holder, the amount
specified in the proclamation of sale as that for the recovery of which the
sale was ordered, less any amount which may, since the date of such
proclamation of sale, have been received by the decree-holder.
(2)
Where a person applies under rule 90 to set
aside the sale of his immovable property, he shall not, unless he withdraws his
application, be entitled to make or prosecute an application under this rule.
(3)
Nothing in this rule shall relieve the
judgment-debtor from any liability he may be under in respect of costs and
interest not covered by the proclamation of sale.
Rule [90.
Application to set aside sale on ground of irregularity or fraud.
(1)
Where any immovable property has been sold in
execution of a decree, the decree-holder, or the purchaser, or any other person
entitled to share in a rateable distribution of assets, or whose interests are
affected by the sale, may apply to the Court to set aside the sale on the
ground of a material irregularity or fraud in publishing or conducting it.
(2)
No sale shall be set aside on the ground of
irregularity or fraud in publishing or conducting it unless, upon the facts
proved, the Court is satisfied that the applicant has sustained substantial
injury by reason of such irregularity or fraud.
(3)
No application to set aside a sale under this
rule shall be entertained upon any ground which the applicant could have taken
on or before the date on which the proclamation of sale was drawn up.
Explanation The mere absence
of, or defect in, attachment of the property sold shall not, by itself, be a
ground for setting aside a sale under this rule.]
Rule 91. Application by purchaser to set
aside sale on ground of judgment-debtor having no saleable interest.
The purchaser at any such
sale in execution of a decree may apply to the Court to set aside the sale, on
the ground that the judgment-debtor had no saleable interest in the property
sold.
Rule 92. Sale when to become absolute or be
set aside.
(1)
Where no application is made under rule 89,
rule 90 or rule 91, or where such application is made and disallowed, the Court
shall make an order confirming the sale, and thereupon the sale shall become
absolute:
[Provided
that, where any property is sold in execution of a decree pending the final
disposal of any claim to, or any objection to the attachment of, such property,
the Court shall not confirm such sale until the final disposal of such claim or
objection.]
(2)
Where such application is made and allowed,
and where, in the case of an application-under rule 89, the deposit required by
that rule is made within [sixty
days] from the date of sale, [or
in cases where the amount deposited under rule 89 is found to be deficient
owing to any clerical or arithmetical mistake on the part of the depositor and
such deficiency has been made good within such time as may be fixed by the
Court, the Court shall make an order setting aside the sale]:
Provided that no order shall
be made unless notice of the application has been given to all persons affected
thereby:
[Provided
further that the deposit under this sub-rule may be made within sixty days in
all such cases where the period of thirty days, within which the deposit had to
be made, has not expired before the commencement of the Code of Civil Procedure
(Amendment) Act, 2002.
(3)
No suit to set aside an order made under this
rule shall be brought by any person against whom such order is made.
[(4)
Where a third party challenges the judgment-debtor’s title by filing a suit
against the auction- purchaser, the decree-holder and the judgment-debtor shall
be necessary parties to the suit.
(5) If the suit referred to in sub-rule (4) is
decreed, the Court shall direct the decree-holder to refund the money to the
auction-purchaser, and where such an order is passed the execution proceeding
in which the sale had been held shall, unless the Court otherwise directs, be
revived at the stage at which the sale was ordered].
Rule 93. Return of purchaser-money in certain
cases.
Where a sale of immovable
property is set aside under rule 92, the purchaser shall be entitled to an
order for repayment of his purchase-money, with or without interest as the
Court may direct, against any person to whom it has been paid.
Rule 94. Certificate to purchaser.
Where a sale of immovable
property has become absolute, the Court shall grant a certificate specifying
the property sold and the name of the person who at the time of sale is
declared to be the purchaser. Such certificate shall bear date the day on which
the sale became absolute.
Rule 95. Delivery of property in occupancy of
judgment-debtor.
Where the immovable property
sold is in the occupancy of the judgment-debtor or of some person on his behalf
or of some person claiming under a title created by the judgment-debtor
subsequently to the attachment of such property and a certificate in respect
thereof has been granted under rule 94, the Court shall, on the application of
the purchaser, order delivery to be made by putting such purchaser or any
person whom he may appoint to receive delivery on his behalf in possession of
the property, and, if need be, by removing any person who refuses to vacate the
same.
Rule 96. Delivery of property in occupancy of
tenant.
Where the property sold is
in the occupancy of a tenant or other person entitled to occupy the same and a
certificate in respect thereof has been granted under rule 94, the Court shall,
on the application of the purchaser, order delivery to be made by affixing a
copy of the certificate of sale in some conspicuous place on the property, and
proclaiming to the occupant by beat of drum or other customary mode, at some
convenient place, that the interest of the judgment- debtor has been
transferred to the purchaser.
Resistance
of delivery of possession to decree-holder or purchaser
Rule 97. Resistance or obstruction to
possession of immovable property.
(1) Where the holder of a decree for the
possession of immovable property or the purchaser of any such property sold in
execution of a decree is resisted or obstructed by any person in obtaining
possession of the property, he may make an application to the Court complaining
of such resistance or obstruction.
[(2)
Where any application is made under sub-rule (1), the Court shall proceed to
adjudicate upon the application in accordance with the provisions herein
contained.]
Rule [98.
Orders after adjudication.
(1)
Upon the determination of the questions
referred to in rule 101, the Court shall, in accordance with such determination
and subject to the provisions of sub-rule (2),-
(a)
make an order allowing the application and
directing that the applicant be put into the possession of the property or
dismissing the application; or
(b)
pass such other order as, in the
circumstances of the case, it may deem fit.
(2)
Where, upon such determination, the Court is
satisfied that the resistance or obstruction was occasioned without any just cause
by the judgment-debtor or by some other person at his instigation or on his
behalf, or by any transferee, where such transfer was made during the pendency
of the suit or execution proceeding, it shall direct that the applicant be put
into possession of the property, and where the applicant is still resisted or
obstructed in obtaining possession, the Court may also, at the instance of the
applicant, order the judgment-debtor, or any person acting at his instigation
or on his behalf, to be detained in the civil prison for a term which may
extend to thirty days.
Rule 99. Dispossession by decree-holder or
purchaser.
(1)
Where any person other than the judgment-
debtor is dispossessed of immovable property by the holder of a decree for the
possession of such property or, where such property has been sold in execution
of a decree, by the purchaser thereof, he may make an application to the Court
complaining of such dispossession.
(2)
Where any such application is made, the Court
shall proceed to adjudicate upon the application in accordance with the
provisions herein contained.
Rule 100. Order to be passed upon application
complaining of dispossession.
Upon the determination of
the questions referred to in rule 101, the Court shall, in accordance with such
determination,-
(a)
make an order allowing the application and
directing that the applicant be put into the possession of the property or
dismissing the application; or
(b)
pass such other order as, in the
circumstances of the case, it may deem fit.
Rule 101. Question to be determined.
All questions (including
questions relating to right, title or interest in the property) arising between
the parties to a proceeding on an application under rule 97 or rule 99 or their
representatives, and relevant to the adjudication of the application, shall be
determined by the Court dealing with the application and not by a separate suit
and for this purpose, the Court shall, notwithstanding anything to the contrary
contained in any other law for the time being in force, be deemed to have
jurisdiction to decide such questions.
Rule 102. Rules not applicable to transferee
lite pendente.
Nothing in rules 98 and 100
shall apply to resistance or obstruction in execution of a decree for the
possession of immovable property by a person to whom the judgement-debtor has
transferred the property after the institution of the suit in which the decree
was passed or to the dispossession of any such person.
Explanation In this rule,
“transfer” includes a transfer by operation of law.
Rule 103. Orders to be treated as decrees.
Where any application has
been adjudicated upon under rule 98 or rule 100, the order made thereon shall
have the same force and be subject to the same conditions as to an appeal or
otherwise as if it were a decree.]
Rule [104.
Orders under rule 101 or rule 103 to be subject to the result or pending suit.
Every order made under rule
101 or rule 103 shall subject to the result of any suit that may be pending on
the date of commencement of the proceeding in which such order, is made if in
such suit the party against whom the order under rule 101 or rule 103 is made
has sought to establish a right which he claims to the present possession of
the property.
Rule 105. Hearing of application.
(1)
The Court, before which an application under
any of the foregoing rules of this Order is pending, may fix a day for the
hearing of the application.
(2)
Where on the day fixed or on any other day to
which the hearing may be adjourned the applicant does not appear when the case
is called on for hearing, the Court may make an order that the application be
dismissed.
(3)
Where the applicant appears and the opposite
party to whom the notice has been issued by the Court does not appear, the
Court may hear the application ex parte and pass such order as it thinks fit.
Explanation An application
referred to in sub-rule (1) includes a claim or objection made under rule 58.
Rule 106. Setting aside orders passed ex
parte, etc.
(1)
The applicant, against whom an order is made
under sub-rule (2) rule 105 or the opposite party against whom an order is
passed ex parte under sub-rule
(2)
of that rule or under sub-rule (1) of rule
23, may apply to the Court to set aside
the order, and if he satisfies the Court that there was sufficient cause for
his non-appearance whom the application was called on for hearing, the Court
shall set aside the order or such terms as to costs or otherwise as it thinks
fit, and shall appoint a day for the further hearing of the application.
(3)
No order shall be made on an application
under sub-rule (1) unless notice of the application has been served on the
other party.
(4)
An application under sub-rule (1) shall be
made within thirty days from the date of the order, or where, in the case of an
ex parte order, the notice was not duly served, within thirty days from the
date when applicant had knowledge of the order.]
STATE
AMENDMENT
Uttar Pradesh.
Amendment of Order XXI. In
the First Schedule, in Order XXI, rule 104, rule 105 and rule 106 as inserted
by Allahabad High Court shall be re-numbered as rule 106-A, rule 106-B and rule
106-C respectively.
[Vide Uttar Pradesh Act 57
of 1976, s. 10]
Sikkim
Amendment
of Order XXI :-
In the First Schedule, in
Order XXI,-
(a)
in rule 32, in sub-rule (5), the following
Explanation
shall be inserted, namely:-
Explanation-
for the removal of doubts,
it is hereby declared that the expression “the act required to be done” covers
prohibitory as well as mandatory injunctions”
(b)
in rule 92, in sub-rule (2),-
(i)
for the words “thirty days”, the words “sixty
days” shall be substituted;
(ii)
after the first proviso, the following
proviso shall be inserted, namely:-
“Provided further that the
deposit under this sub-rule may be made within sixty das in all such cases
where the period of thirty days, within which the deposit had to be made, has
not expired before the commencement of the Code of Civil Procedure (Amendment)
Act, 2002”
[Vide Sikkim Act 22 of 2002]
ORDER XXII DEATH, MARRIAGE AND INSOLVENCY OR PARTIES
Rule 1. No abatement by party's death if right to sue survives.
The death of a plaintiff or
defendant shall not cause the suit to abate if the right to sue survives.
Rule 2. Procedure where one of several
plaintiffs or defendants dies and right to sue survives.
Where there are more
plaintiffs or defendants than one, and any of them dies, and where the right to
sue survives to the surviving plaintiff or plaintiffs alone, or against the
surviving defendant or defendants alone, the Court shall cause an entry to the
effect to be made on the record,. and the suit shall proceed at the instance of
the surviving plaintiff or plaintiffs, or against the surviving defendant or
defendants.
Rule 3. Procedure in case of death of one of
several plaintiffs or of sole plaintiff.
(1)
Where one of two or more plaintiffs dies and
the right to sue does not survive to the surviving plaintiff or plaintiffs
alone, or a sole plaintiff or sole surviving plaintiff dies and the right to
the sue survives, the Court, on an application made in that behalf, shall cause
the legal representative of the deceased plaintiff to be made a party and shall
proceed with the suit.
(2)
Where within the time limited by law no
application is made under sub-rule (1), the suit shall abate so far as the
deceased plaintiff is concerned, and, on the application of the defendant, the
Court may award to him the costs which he may have incurred in defending the
suit, to be recovered from the estate of the deceased plaintiff.
Rule 4. Procedure in case of death of one of
several defentlants or of sole defendant.
(1)
Where one of two or more defendants dies and
the right to sue does not survive against the surviving defendant or defendants
alone or a sole defendant or sole surviving defendant dies and the right to sue
survives, the Court, on an application made in that behalf, shall cause the
legal representative of the deceased defendants to be made a party and shall
proceed with the suit.
(2)
Any person so made a party may make any
defence appropriate to his character as legal representative of the deceased
defendant.
(3)
Where within the time limited by law no
application is made under sub-rule (1), the suit shall abate as against the
deceased defendant.
[(4)
The Court whenever it thinks fit, may exempt the plaintiff from the necessity
of substituting the legal representatives of any such defendant who has failed
to file a written statement or who, having filed it, has failed to appear and
contest the suit at the hearing; and judgment may, in such case, be pronounced
against the said defendant notwithstanding the death of such defendant and
shall have the same force and effect as if it has been pronounced before death
took place.
(5)
Where—
(a)
the plaintiff was ignorant of the death of a
defendant, and could not, for that reason, make an application for the
substitution of the legal representative of the defendant under this rule
within the period specified in the Limitation Act, 1963 (36 of 1963), and the
suit has, in consequence, abated, and
(b)
the plaintiff applies after the expiry of the
period specified therefore in the Limitation Act, 1963 (36 of 1963), for
setting aside the abatement and also for the admission of that application
under section 5 of that Act on the ground that he had, by reason of such
ignorance, sufficient cause for not making the application with the period specified
in the said Act, the Court shall, in considering the application under the said
section 5, have due regard to the fact of such ignorance, if proved.]
Rule [4A.
Procedure where there is no legal representative.
(1)
If, in any suit, it shall appear to the Court
that any party who has died during the pendency of the suit has no legal
representative, the Court may, on the application of any party to the suit,
proceed in the absence of a person representing the estate of the deceased
person, or may be order appoint the Administrator-General, or an officer of the
Court or such other person as it thinks fit to represent the estate of the
deceased person for the purpose of the suit; and any judgment or order
subsequently given or made in the suit shall bind the estate of the deceased
person to the same extent as he would have been bound if a personal
representative of the deceased person had been a party to the suit.
(2)
Before making an order under this rule, the
Court-
(a)
may require notice of the application for the
order to be given to such (if any) of the persons having an interest in the
estate of the deceased person as it thinks fit; and
(b)
shall as certain that the person proposed to
be appointed to represent the estate of the deceased person is willing to be so
appointed and has no interest adverse to that of the deceased person.]
Rule 5. Determination of question as to legal
representative.
Where a question arises as
to whether any person is or is not the legal representative of a deceased
plaintiff or a deceased defendant, such question shall be determined by the
Court:
[Provided
that where such question arises before an Appellate Court, that Court may,
before determining the question, direct any subordinate Court to try the
question and to return the records together with evidence, if any, recorded at
such trial, its findings and reasons therefor, and the Appellate Court may take
the same into consideration in determining the question.]
Rule 6. No abatement by reason of death after
hearing.
Notwithstanding anything
contained in the foregoing rules, whether the cause of action survives or not,
there shall be no abatement by reason of the death of either party between the
conclusion of the hearing and the pronouncing of the judgment, but judgment may
in such case be pronounced notwithstanding the death and shall have the same
force and effect as if it had been pronounced before the death took place.
Rule 7. Suit not abated by marriage of female
party.
(1)
The marriage of a female plaintiff or
defendant shall not cause the suit to abate, but the suit may notwithstanding
be proceeded with the judgment, and, where the decree is against a female
defendant, it may be executed against her alone.
(2)
Where the husband is by law liable for the
debts of his wife, the decree may, with the permission of the Court, be
executed against the husband also; and, in case of judgment for the wife,
execution of the decree may, with such permission, be issued upon the
application of the husband, where the husband is by law entitled to the subject-matter
of the decree.
Rule 8. When plaintiff's insolvency bars
suit.
(1)
The insolvency of a plaintiff in any suit
which the assignee or receiver might maintain for the benefit of his creditors,
shall not cause the suit to abate, unless such assignee or receiver declines to
continue the suit or (unless for any special reason the Court otherwise
directs) to give security for the costs thereof within such time as the Court
may direct.
(2)
Procedure where assignee fails to continue
suit, or give security Where the assignee or receiver neglects or refuses to
continue the suit and to give such security within the time so ordered, the
defendant may apply for the dismissal of the suit on the ground of the
plaintiff's insolvency, and the Court may make an order dismissing the suit an
awarding to the defendant the costs which he has incurred in defending the same
to be proved as a debt against the plaintiff’s estate.
Rule 9. Effect of abatement or dismissal.
(1)
Where a suit abates or is dismissed under
this Order, no fresh suit shall be brought on the same cause of action.
(2)
The plaintiff or the person claiming to be
the legal representative of a deceased plaintiff or the assignee or the
receiver in the case of an insolvent plaintiff may apply for an order to set
aside the abatement or dismissal; and if it is proved that he was prevented by
any sufficient cause from continuing the suit, the Court shall set aside the
abatement or dismissal upon such terms as to costs or otherwise as it thinks
fit.
(3)
The provisions of Section 5 of the [Indian
Limitation Act, 1877 (15 of 1877)] shall apply to applications under sub-rule
(2).
[Explanation
Nothing in this rule shall be construed as barring, in any later suit, a
defence based on the facts which constituted the cause of action in the suit
which had abated or had been dismissed under this Order.]
Rule 10. Procedure in case of assignment
before final order in suit.
(1)
In other cases of an assignment, creation or
devolution of any interest during the pendency of a suit, the suit may, by
leave of the Court, be continued by or against the person to or upon whom such
interest has come or devolved.
(2)
The attachment of a decree pending an appeal
therefrom shall be deemed to be an interest entitling the person who procured
such attachment to the benefit of sub-rule (1).
Rule [10A.
Duty of pleader to communicate to Court death of a party.
Wherever a pleader appearing
for a party to the suit comes to know of the death of that party, he shall
inform the Court about it, and the Court shall thereupon give notice of such
death to the other party, and, for this purpose, the contract between the
pleader and the deceased party shall be deemed to subsist.]
Rule 11. Application of Order to appeals.
In the application of this
Order to appeals, so far as may be, the word “Plaintiff” shall be held to
include an appellant, the word “defendant” a respondant, and the word “suit”an
appeal.
Rule 12. Application of Order to proceedings.
Nothing in rules 3, 4 and 8
shall apply to proceedings in execution of a decree or order.
ORDER XXIII WITHDRAWAL AND ADJUSTMENT OF SUITS
Rule [1. Withdrawal of
suit or abandonment of part of claim.
(1)
At any time after the institution of a suit,
the plaintiff may as against all or any of the defendants abandon his suit or
abandon a part of his claim:
Provided that where the
plaintiff is a minor or other person to whom the provisions contained in rules
1 to 14 of Order XXXII extend, neither the suit nor any part of the claim shall
be abandoned without the leave of the Court.
(2)
An application for leave under the proviso to
sub-rule (1) shall be accompanied by an affidavit of the next friend and also,
if the minor or such other person is represented by a pleader, by a certificate
of the pleader to the effect that the abandonment proposed is, in his opinion,
for the benefit of the minor or such other person.
(3)
Where the Court is satisfied,-
(a)
that a suit must fail by reason of some
formal defect, or
(b)
that there are sufficient grounds for
allowing the plaintiff to institute a fresh suit for the subject matter of suit
or part of a claim, It may, on such terms as it thinks fit grant the plaintiff
permission to withdraw from such suit or such part of the claim with liberty to
institute a fresh suit in respect of the subject-matter of such suit or such
part of the claim.
(4)
Where the plaintiff-
(a)
abandons any suit or part of claim under
sub-rule (1), or
(b)
withdraws from a suit or part of a claim
without the permission referred to in sub-rule (3), he shall be liable for such
costs as the Court may award and shall be precluded from instituting any fresh
suit in respect of such subject-matter or such part of the claim.
(5)
Nothing in this rule shall be deemed to
authorise the Court to permit one of several plaintiffs to abandon a suit or
part of a claim under sub-rule (1), or to withdraw, under sub-rule (3), any
suit or part of a claim, without the consent of the other plaintiff.]
Rule [1A.
When transposition of defendants as plaintiffs may be permitted.
Where a suit is withdrawn or
abandoned by a plaintiff under rule 1, and a defendant applies to be transposed
as a plaintiff under rule 10 of Order I the Court shall, in considering such
application, have due regard to the question whether the applicant has a
substantial question to be decided as against any of the other defendants.]
Rule 2. Limitation law not affected by first
suit.
In any fresh suit instituted
on permission granted under the last preceding rule, the plaintiff shall be
bound by the law of limitation in the same manner as if the first suit had not
been instituted.
Rule 3. Compromise of suit.
Where it is proved to the
satisfaction of the Court that a suit has been adjusted wholly or in part by
any lawful agreement or compromise [in
writing and signed by the parties] or where the defendant satisfied the
plaintiff in respect to the whole or any part of the subject-matter of the
suit, the Court shall order such agreement, compromise or satisfaction to be
recorded, and shall pass a decree in accordance therewith [so
far as it relates to the parties to the suit, whether or not the subject-
matter of the agreement, compromise or satisfaction is the same as the
subject-matter of the suit:]
[Provided
that where it is alleged by one party and denied by the other that an
adjustment or satisfaction has been arrived at, the Court shall decide the
question; but not adjournment shall be granted for the purpose of deciding the
question, unless the Court, for reasons to be recorded, thinks fit to grant such
adjournment.]
[Explanation.
An agreement or compromise which is void or voidable under the Indian Contract
Act, 1872 (9 of 1872), shall not he deemed to be lawful within the meaning of
this rule.]
Rule [3A.
Bar to suit.
No suit shall lie to set aside
a decree on the ground that the compromise on which the decree is based was not
lawful.
Rule 3B. No agreement or compromise to be
entered in a representative suit without leave of Court.
(1)
No agreement or compromise in a
representative suit shall be entered into without the leave of the Court
expressly recorded in the proceedings; and any such agreement or compromise
entered into without the leave of the Court as recorded shall be void.
(2)
Below granting such leave, the Court shall
give notice in such manner as it may think fit to such persons is as may appear
to it to be interested in the suit.
Explanation In this rule,
“representative suit” means,-
(a)
a suit under Section 91 or Section 92,
(b)
a suit under rule 8 of Order I,
(c)
a suit in which the manager of an undivided
Hindu family sues or is sued as representing the other members of the family,
(d)
any other suit in which the decree passed
may, by virtue of the provisions of this Code or of any other law for the time
being in force, bind any person who is not named as party to the suit.]
Rule 4. Proceedings in execution of decrees
not affected.
Nothing in this Order shall
apply to any proceedings in execution of a decree or order.
ORDER XXIV PAYMENT INTO COURT
Rule 1. Deposit by defendant of amount in satisfaction of claim.
The defendant in any suit to
recover a debt or damages may, at any stage of the suit, deposit in Court such
sum of money as he considers a satisfaction in full of the claim.
Rule 2. Notice of deposit.
Notice of the deposit shall
be given through the Court by the defendant to the plaintiff, and the amount of
the deposit shall (unless the Court otherwise directs) be paid to the plaintiff
on his application.
Rule 3. Interest on deposit not allowed to
plaintiff after notice.
No interest shall be allowed
to the plaintiff on any sum deposited by the defendant from the date of the
receipt of such notice, whether the sum deposited is in full of the claim or
falls short thereof.
Rule 4. Procedure where plaintiff accepts
deposit as satisfaction in part.
(1)
Where the plaintiff accepts such amount as
satisfaction in part only of his claim, he may prosecute his suit for the
balance; and, if the Court decides that the deposit by the defendant was a full
satisfaction of the plaintiff's claim, the plaintiff shall pay the costs of the
suit incurred after the deposit and the costs incurred previous thereto, so far
as they were caused by excess in the plaintiff's claim.
(2)
Procedure where he accepts it as satisfaction
in full Where the plaintiff accepts such amount as satisfaction in full of his
claim, he shall present to the Court a statement to that effect, and such
statement shall be filed and the Court shall pronounce judgment accordingly;
and, in directing by whom the costs of each party are to be paid, the Court
shall consider which of the parties is most to blame for the litigation.
Illustrations
(a)
A owes B Rs. 100. B. sues A for the amount,
having made no demand for payment and having no reason to believe that the
delay caused by making a demand would place him at a disadvantage. On the
plaint being filed, A pays the money into Court, B accepts it in full
satisfaction of his claim, but the Court should not allow him any costs, the
litigation being presumably groundless on his part.
(b)
B sues A under the circumstances mentioned in
illustration (a). On the plaint being filed, A disputes the claim Afterwards A
pays the money into Court. B accepts in full satisfaction of his claim. The
Court should also give B his cast of suit. A's conduct having shown that the
litigation was necessary.
(c)
A owes B Rs. 100, and is willing to pay him
that sum without suit.- B claims Rs. 150 and sues A for that amount. On the
plaint being filed, A pays Rs. 100 into Court and disputes only his liability
to pay the remaining Rs. 50. B accepts the Rs. 100 in full satisfaction of his
claim. The Court should order him to pay A's costs.
ORDER XXV SECURITY FOR COSTS
Rule [1. When security for
costs may be required from plaintiff.
(1)
At any stage of a suit, the Court may, either
of its own motion or on the application of any defendant, order the plaintiff,
for reasons to be recorded, to give within the time fixed by it security for
the payment of all costs incurred and likely to be incurred by any defendant:
Provided that such an order
shall be made in all cases in which it appears to the Court that a sole
plaintiff is, or (when there are more plaintiffs than one) that all the
plaintiffs are, residing out of India and that such plaintiff does not possess
or that no one of such plaintiffs possesses any sufficient immovable property
within India other than the property in suit.
(2)
Whoever leaves India under such circumstances
as to afford reasonable probability that he will not be forthcoming whenever he
may be called upon to pay costs shall be deemed to be residing out of India
within the meaning of the proviso to sub-rule (1)].
Rule 2. Effect of failure to furnish
security.
(1)
In the event of such security not being
furnished within the time fixed, the Court shall make an order dismissing the
suit unless the plaintiff or plaintiffs are permitted to withdraw therefrom.
(2)
Where a suit is dismissed under this rule,
the plaintiff may apply for an order to set the dismissal aside and, if it is
proved to the satisfaction of the Court that he was prevented by any sufficient
cause from furnishing the security within the time allowed, the Court shall set
aside the dismissal upon such terms as to security; costs or otherwise as it
thinks fit, and shall appoint a day for proceeding with the suit.
(3)
The dismissal shall not be set aside unless
notice of such application has been served on the defendant.
ORDER XXVI COMMISSIONS
Commissions
to examine witnesses
Rule 1. Cases in which Court may issue
commission to examine witness.
Any Court may in any suit
issue a commission for the examination on interrogatories or otherwise of any
person resident within the local limits of its jurisdiction who is exempted
under this Code from attending the Court or who is from sickness or infirmity
unable to attend it:
[Provided
that a commission for examination on interrogatories shall not be issued unless
the Court, for reasons to be recorded, thinks it necessary so to do.
Explanation The Court may,
for the purpose of this rule, accept a certificate purporting to be signed by a
registered medical practitioner as evidence of the sickness or infirmity of any
person, without calling the medical practitioner as a witness.]
Rule 2. Order for commission.
An order for the issue of a
commission for the examination of a witness may be made by the Court either of
its own motion or on the application, supported by affidavit or otherwise, of any
party to the suit or of the witness to be examined.
Rule 3. Where witness resides within Court’s
jurisdiction.
A commission for the
examination of a person who resides within the local limits of the jurisdiction
of the Court issuing the same may be issued to any person whom the Court thinks
fit to execute it.
Rule 4. Persons for whose examination
commission may issue.
(1)
Any Court may in any suit issue a commission [for
the examination on interrogatories or otherwise of-]
(a)
any person resident beyond the local limits
of its jurisdiction;
(b)
any person who is about to leave such limits
before the date on which he is required to be examined in Court; and
(c)
[any
person in the service of the Government] who cannot in the opinion of the
Court, attend without detriment to the public service:
[Provided
that where, under rule 19 of Order XVI, a person cannot be ordered to attend a
Court in person, a commission shall be issued for his examination if his
evidence is considered necessary in the interests of justice:
Provided further that a
commission for examination of such person on interrogatories shall not be
issued unless the Court, for reasons to be recorded, thinks it necessary so to
do.]
(2)
Such commission may be issued to any Court,
not being a High Court, within the local limits of whose jurisdiction such
person resides, or to any pleader or other person whom the Court issuing the
commission may appoint.
(3)
The Court on issuing any commission under
this rule shall direct whether the commission shall be returned to itself or to
any subordinate Court.
Rule [4A.
Commission for examination of any person resident within the local limits of
the jurisdiction of the Court.
Notwithstanding anything
contained in these rules, any court may, in the interest of justice or for the
expeditious disposal of the case or for any other reason, issue commission in
any suit for the examination, on interrogatories or otherwise, of any person
resident within the local limits of its jurisdiction, and the evidence so
recorded shall be read in evidence.]
Rule 5. Commission or request to examine
witness not within India.
Where any Court to which
application is made for the issue of a commission for the examination of a
person residing at any place not within [India]
is satisfied that the evidence of such person is necessary, the Court may issue
such commission or a letter of request.
Rule 6. Court to examine witness pursuant to
Commission.
Every Court receiving a
commission for the examination of any person shall examine him or cause him to
be examined pursuant thereto.
Rule 7. Return of commission with depositions
of witnesses.
Where a commission has been
duly executed, it shall be returned, together with the evidence taken under it,
to the Court from which it was issued, unless the order for issuing the
commission has otherwise directed, in which case the commission shall be
returned in terms of such order; and the commission and the returned thereto
and the evidence taken under it shall [(subject
to the provisions of rule 8)] from part of the record of the suit.
Rule 8. When depositions may be read in
evidence.
Evidence taken under a
commission shall not be read as evidence in the suit without the consent of the
party against whom the same is offered, unless—
(a)
the person who gave the evidence is beyond
the jurisdiction of the Court, or dead or unable from sickness or infirmity to
attend to be personally examined, or exempted from personal appearance in
Court, or is a [person
in the service of the Government] who cannot, in the opinion of the Court,
attend without detriment to the public service, or
(b)
the Court in its discretion dispenses with
the proof of any of the circumstances mentioned in clause (a)and authorizes the
evidence of any person being read as evidence in the suit, notwithstanding
proof that the cause for taking such evidence by commission has ceased at the
time of reading the same.
Commissions
for local investigations
Rule 9. Commissions to make local
investigations.
In any suit in which the
Court deems a local investigation to be requisite or proper for the purpose of
elucidating any matter in dispute, or of ascertaining the market-value of any
property, or the amount of any mesne profits or damages or annual net profits,
the Court may issue a commission to such person as it thinks fit directing him
to make such investigation and to report thereon to the Court:
Provided that, where the
State Government has made rules as to the persons to whom such commission shall
be issued, the Court shall be bound by such rules.
Rule 10. Procedure of Commissioner.
(1)
The Commissioner, after such local inspection
as he deems necessary and after reducing to writing the evidence taken by him,
shall return such evidence, together with his report in writing signed by him,
to the Court.
(2)
Report and depositions to be evidence in
suit. Commissioner may be examined in person The report of the Commissioner and
the evidence taken by him (but not the evidence without the report) shall be
evidence in the suit and shall form part of the record; but the Court or, with
the permission of the Court, any of the parties to the suit may examine the
Commissioner personally in open Court touching any of the matters referred to
him or mentioned in his report, or as to his report, or as to the manner in
which he has made the investigation.
(3)
Where the Court is for any reason
dissatisfied with the proceedings of the Commissioner, it may direct such
further inquiry to be made as it shall think fit.
[Commissions
for scientific investigation, performance of ministerial act and sale of
movable property
Rule 10A. Commission for scientific
investigation.
(1)
Where any question arising in a suit involves
any scientific investigation which cannot, in the opinion of the Court, be
conveniently conducted before the Court, the Court may, if it thinks it
necessary or expedient in the interests of justice so to do, issue a commission
to such person as it thinks fit, directing him to inquire into such question
and report thereon to the Court.
(2)
The provisions of rule 10 of this Order
shall, as far as may be, apply in relation to a Commissioner appointed under
this rule as they apply in relation to a Commissioner appointed under rule 9.
Rule 10B. Commission for performance of a
ministerial act.
(1)
Where any question arising in a suit involves
the performance of any ministerial act which cannot, in the opinion of the
Court, be conveniently performed before the Court, the Court may, if for
reasons to be recorded, it is of opinion that it is necessary or expedient in
the interests of justice so to do, issue a commission to such person as it
thinks fit, directing him to perform that ministerial act and report thereon to
the Court.
(2)
The provisions of rule 10 of this Order shall
apply in relation to a commissioner appointed under this rule as they apply in
relation to a Commissioner appointed under rule 9.
Rule 10C. Commission for the sale of movable
property.
(1)
Where, in any suit, it becomes necessary to
sell any movable property which is in the custody of the Court pending the
determination of the suit and which cannot be conveniently preserved, the Court
may, if, for reasons to be recorded, it is of opinion that it is necessary or
expedient in the interests of justice so to do, issue a commission to such
person as it thinks fit, directing him to conduct such sale and report thereon
to the Court.
(2)
The provisions of rule 10 of this Order shall
apply in relation to a Commissioner appointed under this rule as they apply in
relation to a Commissioner appointed under rule 9.
(3)
Every such sale shall be held, as far as may
be, in accordance with the procedure prescribed for the sale of movable
property in execution of a decree.]
Commissions
to examine accounts
Rule 11. Commission to examine or adjust
accounts.
In any suit in which an examination
or adjustment of the accounts is necessary, the Court may issue a commission to
such person as it thinks fit directing him to make such examination or
adjustment.
Rule 12. Court to give Commissioner necessary
instructions.
(1)
The Court shall furnish the Commissioner with
such part of the proceedings and such instructions as appear necessary, and the
instructions shall distinctly specify whether the commissioner is merely to
transmit the proceedings which he may hold on the inquiry, or also to report
his own opinion on the point referred for his examination.
(2)
Proceedings and report to be evidence. Court
may direct further inquiry The proceedings and report (if any) of the
Commissioner shall be evidence in the suit, but where the Court has reason to be
dissatisfied with them, it may direct such further inquiry as it shall think
fit.
Commissions
to make partitions
Rule 13. Commission to make partition of
immovable property.
Where a preliminary decree
for partition has been passed, the Court may, in any case not provided for by
section 54, issue a commission to such person as it thinks fit to make the
partition or separation according to the rights as declared in such decree.
Rule 14. Procedure of Commissioner.
(1)
The Commissioner shall, after such inquiry as
may be necessary, divide the property into as many shares as may be directly by
the order under which the commission was issued, and shall allot such shares to
the parties, and may, if authorised thereto by the said order, award sums to be
paid for the purpose of equalizing the value of the shares.
(2)
The commissioner shall then prepare and sign
a report or the Commissioners (where the commission was issued to more than one
person and they cannot agree) shall prepare and sign separate reports
appointing the share of each party and distinguishing each share (if so
directed by the said order) by metes and bounds. Such report or reports shall
be annexed to the commission and transmitted to the Court; and the Court, after
hearing any objections which the parties may make to the report or reports,
shall confirm, vary or set aside the same.
(3)
Where the Court confirms or varies the report
or reports it shall pass a decree in accordance with the same as confirmed or
varied; but where the Court sets aside the report or reports it shall either
issue a new commission or make such other order as it shall think fit.
General
provisions
Rule 15. Expenses of commission to be paid
into court.
Before issuing any
commission under this Order, the Court may order such sum (if any) as it thinks
reasonable for the expenses of the commission to be, within a time to be fixed,
paid into Court by the party at whose instance or for whose benefit the
commission is issued.
Rule 16. Powers of commissioners.
Any commissioner appointed
under this Order may, unless otherwise directed by the order of appointment,-
(a)
examine the parties themselves and any
witness whom they or any of them may produce, and any other person whom the
Commissioner thinks proper to call upon to give evidence in the matter referred
to him;
(b)
call for and examine documents and other
things relevant to the subject of inquiry;
(c)
at any reasonable time enter upon or into any
land or building mentioned in the order.
Rule [16A.
Questions objected to before the Commissioner.
(1)
Where any question put to a witness is
objected to by a party or his pleader in proceedings before a Commissioner
appointed under this Order, the Commissioner shall take down the question, the
answer, the objections and the name of the party or, as the case may be, the
pleader so objecting:
Provided that the
Commissioner shall not take down the answer to a question which is objected to
on the ground of privilege but may continue with the examination of the
witness, leaving the party to get the question of privilege decided by the
Court, and, where the Court decides that there is no question of privilege, the
witness may be recalled by the Commissioner and examined by him or the witness
may be examined by the Court with regard to the question which was objected to
on the ground of privilege.
(2)
No answer taken down under sub-rule (1) shall
be read as evidence in the suit except by the order of the Court.]
Rule 17. Attendance and examination of
witnesses before Commissioner.
(1)
The provisions of this Code relating to the
summoning, attendance and examination of witnesses, and to the remuneration of,
and penalties to be imposed upon, witnesses, shall apply to persons required to
give evidence or to produce documents under this Order whether the commission
in execution of which they are so required has been issued by a Court situate
within or by a Court situate beyond the limits of [India],
and for the purposes of this rule the Commissioner shall be deemed to be a
Civil Court:
[Provided
that when the Commissioner is not a Judge of a Civil Court, he shall not be
competent to impose penalties; but such penalties may be imposed on the
application of such Commissioner by the Court by which the commission was
issued.]
(2)
A Commissioner may apply to any Court (not
being a High Court) within the local limits or whose jurisdiction a witness
resides for the issue of any process which he may find it necessary to issue to
or against such witness, and such Court may, in its discretion, issue such process
as it considers reasonable and proper.
Rule 18. Parties to appear before
Commissioner.
(1)
Where a commission is issued under this
Order, the Court shall direct that the parties to the suit shall appear before
the Commissioner in person or by their agents or pleaders.
(2)
Where all or any of the parties do not so
appear, the Commissioner may proceed in their absence.
Rule [18A.
Application of order to execution proceedings.
The provisions of this Order
shall apply, so far as may be, to proceedings in execution of a decree or
order.
Rule 18B. Court to fix a time for return of
commission.
The Court issuing a
commission shall fix a date on or before which the commission shall be returned
to it after execution, and the date so fixed shall not be extended except where
the Court, for reasons to be recorded, is satisfied that there is sufficient
cause for extending the date.]
[Commissions
issued of the instance of foreign Tribunals
Rule 19. Cases in which High Court may issue
commission to examine witness.
(1)
If a High Court is satisfied
(a)
that a foreign court situated in a foreign
country wishes to obtain the evidence of a witness in any proceeding before it,
(b)
that the proceeding is of a civil nature, and
(c)
that the witness is residing within the
limits of the High Court’s appellate jurisdiction, it may, subject to the
provisions of rule 20, issue a commission for the examination of such witness.
(2)
Evidence may be given of the matters
specified in clause (a), (b) and (c) of sub-rule (1)-
(a)
by a certificate signed by the consular
officer of the foreign country of the highest rank in India and transmitted to
the High Court through the Central Government, or
(b)
by a letter of request issued by the foreign
Court and transmitted to the High Court through the Central Government, or
(c)
by a letter of request issued by the foreign
court and produced before the High Court by a party to the proceeding.
Rule 20. Application for issue of commission.
The High Court may issue a
commission under rule 19-
(a)
upon application by a party to the proceeding
before the foreign court, or
(b)
upon an application by a law officer of the
State Government acting under instructions from the State Government.
Rule 21. To whom commission may be issued.
A commission under rule 19
may be issued to any Court within the local limits of whose jurisdiction the
witness resides, or ***
the witness resides within the local limits of [the
ordinary original civil jurisdiction of the High Court], to any person whom the
Court thinks fit to execute the commission.
Rule 22. Issue, execution and return of
commissions, land transmission of evidence to foreign Court.
The provisions of rules 6,
15, [sub-rule
(1) of rule 16A, 17, 18 and 18B] of this Order in so far as they are applicable
shall apply to the issue, execution and return of such commissions, and when
any such commission has, been duly executed it shall be returned, together with
the evidence taken under it, to the High Court, which shall forward it to the
Government General in Council along with the letter of request for transmission
to the foreign court.]
ORDER XXVII Suits by or against the government or public officers in their official capacity
Rule 1. Suits by or against Government.
In any suit by or against [the
Government], the plaint or written statement shall be signed by such person as
the Government may, by general or special order, appoint in this behalf, and
shall be verified by any person whom the Government may so appoint and who is
acquainted with the facts of the case.
Rule 2. Persons authorised to act for
Government.
Persons being ex officio or
otherwise authorised to act for the Government in respect of any judicial
proceeding shall be deemed to be recognised agents by whom appearances, acts
and applications under this Code may be made or done on behalf of the
Government.
Rule 3. Plaints in suits by or against
Government.
In suits by or [against the
Government], instead of inserting in the plaint the name and description and
place of residence of the plaintiff or defendant, it shall be sufficient to
insert [the
appropriate name as provided in section 79 ***].
Rule [4.
Agent for Government to receive process.
The Government pleader in
any Court shall be the agent of the Government for the purpose of receiving
processes against the Government issued by such Court].
Rule 5. Fixing of day for appearance on
behalf of Government.
The Court, in fixing the day
for [the
Government] to answer to the plaint, shall allow a reasonable time for the
necessary communication with the Government through the proper channel, and for
the issue of instructions to the [Government
pleader] to appear and answer on behalf of 8[the Government] ***,
and may extend the time at its discretion [but
the time so extended shall not exceed two months in the aggregate].
Rule [5A.
Government to be joined as a party in a suit against a public officer.
Where a suit is instituted
against a public officer for damages or other relief in respect of any act
alleged to have been done by him in his official capacity, the Government shall
be joined as a party to the suit.
Rule 5B. Duty of Court in suits against the
Government or a public officer to assist in arriving at a settlement.
(1)
In every suit or proceeding to which the
Government, or a public officer acting in his official capacity, is a party, it
shall be the duty of the Court to make, in the first instance, every endeavour,
where it is possible to do so consistently with the nature and circumstances of
the case, to assist the parties in arriving at a settlement in respect of the
subject-matter of the suit.
(2)
If, in any such suit or proceeding, at any
stage, it appears to the court that there is a reasonable possibility of a
settlement between the parties, the Court may adjourn the proceeding for such
period as it thinks fit, to enable attempts to be made to effect such a
settlement.
(3)
The power conferred under sub-rule (2) is in
addition to any other power of the Court to adjourn proceedings.].
Rule 6. Attendance of person able to answer
questions relating to suit against Government.
The Court may also, in any
case in which the [Government
pleader] is not accompanied by any person on the part of [the
Government] who may be able to answer any material questions relating to the
suit, direct the attendance of such a person.
Rule 7. Extension of time to enable public
officer to make reference to Government.
(1)
Where the defendant is a public officer and,
on receiving the summons, considers it proper to make a reference to the
Government before answering the plaint, he may apply to the Court to grant such
extension of the time fixed in the summons as may be necessary to enable him to
make such reference and to receive orders thereon through the proper channel.
(2)
Upon such application the Court shall extend
the time for so long as appears to it to be necessary.
Rule 8. Procedure in suits against public
officer.
(1)
Where the Government undertakes the defence
of a suit against a public officer, the [Government
pleader] upon being furnished with authority to appear and answer the plaint,
shall apply to the court, and upon such application the Court shall cause a
note of his authority to be entered in the register of civil suits.
(2)
Where no application under sub-rule (1) is
made by the [Government
pleader] on or before the day fixed in the notice for the defendant to appear
and answer, the case shall proceed as in a suit between private parties:
Provided that the defendant
shall not be liable to arrest, nor his property to attachment, otherwise than
in execution of a decree.
Rule [8A.
No security to be required from Government or a public officer in certain
cases.
No such security as is
mentioned in rules 5 and 6 of Order XLI shall be required from the Government
or, where the Government has undertaken the defence of the suit, from any public
officer sued in respect of an act alleged to be done by him in his official
capacity. ,
Rule 8B. Definitions of “Government” and
“Government pleader”.
In this Order [unless
otherwise expressly provided] “Government” and [“Government
pleader”] mean respectively—
(a)
in relation to any suit by or against ***
the Central Government, or against a public officer in the service of that
Government, the Central Government and such pleader as that Government may
appoint whether generally or specially for the purposes of this order;
(b)
* *
* * *
(c)
in relation to any suit by or against State
Government or against a public officer in the service of a State. the State
Government and the Government pleader [as
defined in clause (7) of section 2], or such other pleader as the State
Government may appoint, whether generally or specially, for the purposes of
this Order.].
STATE
AMENDMENT
Uttar Pradesh.
Amendment of Order XXVII. In
the First Schedule, in Order XXVII —
(a)
in the marginal heading after the words
“official capacity” the words “or Statutory Authorities, etc.” shall be
inserted;
(b)
after rule 9, as inserted by the Allahabad
High Court, the following rule shall be inserted, namely:-
“10.
Suits by or against statutory authorities:-
(1)
Any authority or Corporation, constituted by
or under any law, may, from time to time appoint a Standing Counsel, to be
called corporation pleader of that authority, in any district and give
information of such appointment to the District Judge.
(2)
The Corporation pleader so appointed shall be
the agent in that district of the appointing authority or Corporation for
purposes of receiving processes against it, but shall not act or plead without
filing a Vakalatnama or memorandum of appearance.”
[Vide Uttar Pradesh Act 56
of 1976, s. 11]]
[ORDER XXVII-A][590] Suits involving a substantial question of law as to the interpretation for [591][the constitution] [592][or as to the validity of any statutory instrument]
Rule 1. Notice to the Attorney General or the Advocate-General.
In any suit in which it appears
to the Court that [any
such question as is referred to [in
clause (1) of Article 132, read with Article 147 of the Constitution,] is
involved, the Court shall not proceed to determine that question until after
notice has been given to [the
Attorney General for India] if the question of law concerns the Central
Government and to the Advocate-General of the State if the question of law
concerns a State Government.
Rule [1A.
Procedure in suits involving validity of any statutory instrument.
In any suit in which it
appears to the Court that any question as to the validity of any statutory
instrument, not being a question of the nature mentioned in rule l, is
involved, the Court shall not proceed to determine that question except after
giving notice—
(a)
to the Government pleader, if the question
concern the Government, or
(b)
to the authority which issued the statutory
instrument, if the question concerns an authority other than Government.]
Rule 2. Court may add Government as party.
The Court may at any stage
of the proceedings order that the Central Government or a State Government
shall be added as a defendant in any suit involving [any
such question as is referred to [in
clause (1) of Article 132 read with Article 147, of the Constitution]], if [the
Attorney General for India] or the Advocate-General of the State, as the case
may be, whether upon receipt of notice under rule 1, or otherwise, applies for
such addition and the Court is satisfied that such addition is necessary or
desirable for the satisfactory determination of the question of law involved.
Rule [2A.
Power of Court to add Government or other authority as a defendant in a suit
relating to the validity of any statutory instrument.
The Court may, at any stage
of the proceedings in any suit involving any such question as is referred to in
rule 1A, order that the Government or other authority shall be added as a
defendant if the Government pleader or the pleader appearing in the case for
the authority which issued the instrument, as the case may be, whether upon
receipt of notice under rule lA or otherwise, applies for such addition, and
the Court is satisfied that such addition is necessary or desirable for the
satisfactory determination of the question.]
Rule [3.
Costs.
Where, under rule 2 or rule
2A the Government or any other authority is added as a defendant in a suit, the
Attorney-General, Advocate-General, or Government Pleader or Government or
other authority 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 reason, otherwise orders.]
Rule 4. Application of Order to appeals.
In the application of this
Order to appeals the word “defendant” shall be held to include a respondent and
the word “suit” an appeal.
[Explanation
In this Order, “statutory instrument” means a rule, notification, bye-law,
order, scheme or form made as specified under any enactment.]
ORDER XXVIII Suits by or against military [603][or naval] men [604][or airmen]
Rule 1. Officers, soldiers, sailors or airmen who cannot obtain leave may
authorise any person to sue or defend for them.
(1)
Where any officer, [soldier,
[sailor]
or airman] actually [serving
under the Government] in [such]
capacity is a party to a suit, and cannot obtain leave of absence for the
purpose of prosecuting or defending the suit in person, he may authorise any
person to sue or defend in his stead.
(2)
The authority shall be writing and shall be
signed by the officer, [soldier,
[sailor]
or airman] in the presence of (a) his commanding officer, or the next
subordinate officer, if the party is himself the commanding officer, or (b)
where the officer, [soldier,
[sailor]
or airman,] is serving in military, [naval],
[or
air force] staff employment, the head or other superior officer of the office
in which he is employed. Such commanding or other officer shall countersign the
authority, which shall be filed in Court.
(3)
When so filed the countersignature shall be
sufficient proof that the authority was duly executed, and that the officer, [soldier
[,
sailor] or air man] by whom it was granted could not obtain leave of absence
for the purpose of prosecuting of defending the suit in person.
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 depot to which the officer, [soldier
[,
sailor] or airman] belongs.
Rule 2. Person so authorised may act
personally or appoint pleader.
Any person authorised by an
officer, [soldier
[,
sailor] or airman] to prosecute or defend a suit in his stead may prosecute or
defend it in person in the same manner as the officer, [soldier
[,
sailor] or airman] could do if present; or he may appoint a pleader to
prosecute or defend the suit on behalf of such officer, [soldier
[,
sailor] or airman].
Rule 3. Service on person so authorised, or
on his pleader, to be good service.
Processes served upon any
person authorised by an officer [soldier
[,
sailor] or airman] under rule 1 or upon any pleader appointed as aforesaid by
such person shall he as effectual as if they had been served on the party in
person.
ORDER XXIX Suits by or against corporations
Rule 1. Subscription and verification of pleading.
In suits by or against a
corporation, any pleading may be signed and verified on behalf of the
corporation by the secretary or by any director or other principal officer of
the corporation who is able to depose to the facts of the case.
Rule 2. Service on corporation.
Subject to any statutory
provision regulating service of process, where the suit is against a
corporation, the summons may be served—
(a)
on the secretary, or on any director, or other
principal officer of the corporation, or
(b)
by leaving it or sending it by post addressed
to the corporation at the registered office, or if there is no registered
office then at the place where the corporation carries on business.
Rule 3. Power to require personal attendance
of officer of corporation.
The Court may, at any stage
of the suit, require the personal appearance of the secretary or of any
director, or other principal officer of the corporation who may be able to
answer material questions relating to the suit.
STATE
AMENDMENT
Uttar Pradesh.
Amendment of Order XXIX. In
the First Schedule, in Order XXIX, in rule 2, after clause (a), the following
clause shall be inserted, namely:—
“(aa)
on its corporation pleader in the district where the Court issuing summons is
located, if one has been appointed and the appointment has been notified to the
District Judge under rule 10 of Order XXVII, or.”
[Vide Uttar Pradesh Act 57
of 1976, s. 12]
ORDER XXX Suits by or against firms and persons carrying on business in names other than their own
Rule 1. Suing of partners in name of firm.
(1)
Any two or more persons claiming or being
liable as partners and carrying on business in, [India]
may sue or be sued in the name of the firm (if any) of which such persons were
partners at the time of the accruing of the cause of action, and any party to a
suit may in such case apply to the Court for a statement of the names and
addresses of the persons who were, at the time of the accruing of the cause of
action, partners in such firm, to be furnished and verified in such manner as
the Court may direct.
(2)
Where persons sue or are sued partners in the
name of their firm under sub-rule (1), it shall, in the case of any pleading or
other document required by or under this Code to be signed, verified or
certified by the plaintiff of the defendant, suffice such pleading or other
document is signed, verified or certified by any one of such persons.
Rule 2. Disclosure of partners’ names.
(1)
Where a suit is instituted by partners in the
name of their firm, the plaintiffs or their pleader shall, on demanding writing
by or on behalf of any defendant, forthwith declare in writing the names and
places of residence of all the persons constituting the firm on whose behalf
the suit is instituted.
(2)
Where the plaintiffs or their pleader fail to
comply with any demand made under sub-rule (1) all proceedings in the suit may,
upon an application for that purpose, be stayed upon such terms as the Court
may direct.
(3)
Where the names of the partners are declared
in the manner referred to in sub-rule (1) the suit shall proceed in the same
manner, and the same consequences in all respects shall follow, as if they had
been named as plaintiffs in the plaint:
[Provided
that all proceedings shall nevertheless continue in the name of the firm, but
the name of the partners disclosed in the manner specified in sub-rule (1)
shall be entered in the decree.]
Rule 3. Service.
Where persons are sued as
partners in the name of their firm, the summons shall be served either—
(a)
upon any one or more of the partners, or
(b)
at the principal place at which the
partnership business is carried on within [India]
upon any person having, at the time of service, the control or management of
the partnership business, there, as the Court may direct; and such service
shall be deemed good service upon the firm so sued, whether all or any of the
partners are within or without [India]:
Provided that, in the case
of a partnership which has been dissolved to the knowledge of the plaintiff before
the institution of the suit, the summons shall be served upon every person
within [India]
whom it is sought to make liable.
Rule 4. Rights of suit on death of partner.
(1)
Notwithstanding anything contained in section
45 of the Indian Contract Act, 1872 (9 of 1872) where two or more persons may
sue or be sued in the name of a firm under the foregoing provisions and any of
such persons dies, whether before the institution or during the pendency of any
suit, it shall not be necessary to join the legal representative of the
deceased as a party to the suit.
(2)
Nothing in sub-rule (1) shall limit or
otherwise effect any right which the legal representative of the deceased may
have—
(a)
to apply to be made a party to the suit, or
(b)
to enforce any claim against the survivor or
survivors.
Rule 5. Notice in what capacity served.
Where a summons is issued to
a firm and is served in the manner provided by rule 3, every person upon whom
it is served shall be informed by notice in writing given at the time of such
service, whether he is served as a partner or as a person having the control or
management of the partnership business, or in both characters, and, in default
of such notice, the person served shall be deemed to be served as a partner.
Rule 6. Appearance of partners.
Where persons are sued as
partners in the name of their firm, they shall appear individually in their own
names, but all subsequent proceedings shall, nevertheless, continue in the name
of the firm.
Rule 7. No appearance except by partners.
Where a summons is served in
the manner provided by rule 3 upon a person having the control or management of
the partnership business, no appearance by him shall be necessary unless he is
a partner of the firm sued.
Rule [8.
Appearance under protest.
(1)
Any person served with summons as a partner
under rule 3 may enter an appearance under protest, denying that he was a
partner at any material time.
(2)
On such appearance being made, either the
plaintiff or the person entering the appearance may, at any time before the date
fixed for hearing and final disposal of the suit, apply to the Court for
determining whether that person was a partner of the firm and liable as such.
(3)
If, on such application, the Court holds that
he was a partner at the material time, that shall not preclude the person from
filing a defence denying the liability of the firm in respect of the claim
against the defendant.
(4)
If the Court, however, holds that such person
was not a partner of the firm and was not liable as such that shall not
preclude the plaintiff from otherwise serving a summons on the firm and
proceeding with the suit; but in that event, the plaintiff shall be precluded
from alleging the liability of that person as a partner of the firm in
execution of any decree that may be passed against the firm.]
Rule 9. Suits between co-partners.
This Order shall apply to
suits between a firm and one or more of the partners therein and to suits
between firms having one or more partners in common; but no execution shall be
issued in such suits except by leave of the Court, and, on an application for
leave to issue such execution, all such accounts and inquiries may be directed
to be taken and made and directions given as may be just.
Rule [10.
Suit against person carrying on business in name other than his own.
Any person carrying on
business in a name or style other than his own name, or a Hindu undivided
family carrying on business under any name, may be sued in such name or style
as if it were a firm name, and, in so far as the nature of such case permits,
all rules under this Order shall apply accordingly.]
ORDER XXXI SUITS BY OR AGAINST TRUSTEES, EXECUTORS AND ADMINISTRATORS
Rule 1. Representation of beneficiaries in suits concerning property vested in
trustees etc.
In all suits concerning property
vested in a trustee, executor or administrator, where the contention is between
the persons beneficially interested in such property and a third person, the
trustee, executor or Administrator shall represent the persons so interested,
and it shall not ordinarily be necessary to make them parties to the suit. But
the Court may, if it thinks fit, order them or any of them to be made parties.
Rule 2. Joinder of trustees, executors and
administrators.
Where there are several
trustees, executors or administrators, they shall all be made parties to a suit
against one or more of them:
Provided that the executors
who have not proved their testator’s will, and trustees, executors and
administrators outside [India],
need not be made parties.
Rule 3. Husband of married executrix not to
join.
Unless the Court directs
otherwise, the husband of a married trustee, administratrix or executrix shall
not as such be a party to a suit by or against her.
ORDER XXXII SUITS BY OR AGAINST MINORS AND PERSONS OF UNSOUND MIND
Rule 1. Minor to sue by next friend.
Every suit by a minor shall
be instituted in his name by a person who in such suit shall be called the next
friend of the minor.
[Explanation
In this Order, “minor” means a person who has not attained his majority within
the meaning of section 3 of the Indian Majority Act, 1875 (9 of 1875) where the
suit relates to any of the matters mentioned in clauses (a) and (b) of section
2 of that Act or to any other matter.]
Rule 2. Where suit is instituted without next
friend, plaint to be taken off the file.
(1)
Where a suit is instituted by or on behalf of
a minor without a next friend, the defendant may apply to have the plaint taken
off the file, with costs to be paid by the pleader or other person by whom it
was presented.
(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.
Rule [2A.
Security to be furnished by next friend when so ordered.
(1)
Where a suit has been instituted on behalf of
the minor by his next friend, the Court may, at any stage of the suit, either
of its own motion or on the application of any defendant, and for reasons to be
recorded, order the next friend to give security for the payment of all costs
incurred or likely to be incurred by the defendant.
(2)
Where such a suit is instituted by an
indigent person, the security shall include the court-fees payable to the
Government.
(3)
The provisions of rule 2 of Order XXV shall,
so far as may be, apply to a suit where the Court makes an order under this
rule directing security to be furnished.]
Rule 3. Guardian for the suit to be appointed
by Court for minor defendants.
(1)
Where the defendant is a minor the Court, on
being satisfied of the fact of his minority, shall appoint a proper person to
be guardian for the suit for such minor.
(2)
An order for the appointment of a guardian
for the suit may be obtained upon application in the name and on behalf of the
minor or by the plaintiff.
(3)
Such application shall be supported by an
affidavit verifying the fact that the proposed guardian has no interest in the
matters in controversy in the suit adverse to that of the minor and that he is
a fit person to be so appointed.
(4)
Order shall be made on any application under
this rule except upon notice ***
to any guardian of the minor appointed or declared by an authority competent in
that behalf, or, where there is no such guardian [upon
notice to the father or where there is no father, to the mother, or where there
is no father or mother, to other natural guardian] of the minor, or, where
there is [no
father, mother or other natural guardian], to the person in whose care the
minor is, and after hearing any objection which may be urged on behalf of any
person served with notice under this sub-rule.
[(4A)
The Court may, in any case, if it thinks fit, issue notice under sub-rule (4)
to the minor also.]
[(5)
A person appointed under sub-rule (1) to be guardian 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.]
Rule [3A.
Decree against minor not to be set aside unless prejudice has been caused to
his interest.
(1)
No decree passed against a minor shall be set
aside merely on the ground that the next friend or guardian for the suit of the
minor had an interest in the subject-matter of the suit adverse to that of the
minor, but the fact that by reasons of such adverse interest of the next friend
or guardian for the suit, prejudice has been caused to the interests of the
minor, shall be a ground for setting aside the decree.
(2)
Nothing in this rule shall preclude the minor
from obtaining any relief available under any law by reason of the misconduct
or gross negligence on the part of the next friend or guardian for the suit
resulting in prejudice to the interests of the minor.]
Rule 4. Who may act as next friend or he
appointed guardian for the suit.
(1)
Any person who is of sound mind and has
attained majority may act as next friend of a minor or as his guardian for the
suit:
Provided that the interest
of such person is not adverse to 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 plaintiff.
(2)
Where a minor has a guardian appointed or
declared by competent authority, no person other than such guardian shall act
as the next friend of the minor or be appointed his guardian for the suit
unless the Court considers, for reasons to 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.
(3)
No person shall without his consent [in
writing] be appointed guardian for the suit.
(4)
Where there is no other person fit and
willing to act as guardian for the suit, the Court may appoint any of its
officers to be such guardian, and may direct that the costs to be incurred by
such officer in the performance of his duties as 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 Court in which the minor is interested [or
out of the property of the minor], and may give directions for the repayment or
allowance of such costs as justice and the circumstances of the case may
require.
Rule 5. Representation of minor by next
friend or guardian for the suit.
(1)
Every application to the Court on behalf of a
minor, other than an application under rule 10, sub-rule (2), shall be made by
his next friend or by his guardian for the suit.
(2)
Every order made in a suit or on any
application, before the Court in or which a minor is in any way concerned or
affected, without such minor being represented by a next friend or guardian for
the suit, as the case may be, may be discharged, and, where the pleader of the
party at whose instance such order was obtained knew, or might reasonably have
known, the fact of such minority, with costs to be paid by such pleader.
Rule 6. Receipt by next friend or guardian
for the suit of property under decree for minor.
(1)
A next friend or guardian for the suit shall
not, without the leave of the Court, receive any money or other movable
property on behalf of a minor either—
(a)
by way of compromise before decree or order,
or
(b)
under a decree or order in favour of the
minor.
(2)
Where the next friend or guardian for the
suit has not been appointed or declared by competent authority to be guardian
of the property of the minor, or, having been so appointed or declared, is
under any disability known to the Court to receive the money or other movable
property, the Court shall, if it grants him leave to receive the property,
require such security and give such directions as will, in its opinion,
sufficiently protect the property from waste and ensure its proper application:
[Provided
that the Court may, for reasons to be recorded, dispense with such security
while granting leave to the next friend or guardian for the suit to receive
money or other movable property under a decree or order, where such next friend
or guardian—
(a)
is the manager of a Hindu undivided family
and the decree or order relates to the property or business of the family; or
(b)
is the parent of the minor.]
Rule 7. Agreement or compromise by next
friend or guardian for the suit.
(1)
No next friend or guardian for the suit
shall, without the leave of the Court, expressly recorded in the proceedings,
enter into any agreement or compromise on behalf of a minor with reference to
the suit in which he acts as next friend or guardian.
[(1A)
An application for leave under sub-rule (1) shall be accompanied by an
affidavit of the next friend or the guardian for the suit, as the case may be,
and also, if the minor is represented by a pleader, by the certificate of the
pleader, to the effect that the agreement or compromise proposed is, in his
opinion, for the benefit of the minor:
Provided that the opinion so
expressed, whether in the affidavit or in the certificate shall not preclude
the Court from examining whether the agreement or compromise proposed is, for
the benefit of the minor.]
(2)
Any such agreement or compromise entered into
without the leave of the Court so recorded shall be voidable against all
parties other than the minor:
Rule 8. Retirement of next friend.
(1)
Unless otherwise ordered by the Court, a next
friend shall not retire without first procuring a fit person to be put in this
place and giving security for the costs already incurred.
(2)
The application for the appointment of a new
next friend shall be supported by an affidavit showing the fitness of the
person proposed and also that he has no interest adverse to that of the minor.
Rule 9. Removal of next friend.
(1)
Where the interest of the next friend of a
minor is adverse to that of the minor or where he is so connected with a
defendant whose interest is adverse to that of the minor as to make it unlikely
that the minor's interest will be properly protected by him, or where he does
not do his duty, or, during the pendency of the suit, ceases to reside within [India],
or for any other sufficient cause, application, may be made on 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.
(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 considers, for reasons to be recorded by it, that the
guardian ought not to be appointed the next friend of the minor, and shall
thereupon appoint the applicant to be next friend in his place upon such terms
as to the costs already incurred in the suit as it thinks fit.
Rule 10. Stay of proceedings on removal,
etc., of next friend.
(1)
On the retirement, removal or death of the
next friend of a minor, further proceedings shall be stayed until the
appointment of a next friend in his place.
(2)
Where the pleader of such minor omits, within
a reasonable time, to take steps to get a new next friend appointed, any person
interested in the minor or in the matter in issue may apply to the Court for
the appointment of one, and the Court may appoint such person as it thinks fit.
Rule 11. Retirement, removal or death of
guardian for the suit.
(1)
Where the guardian for the suit desires to
retire or does not do his duty, or where other sufficient ground is made to
appear, the Court may permit such guardian to retire or may remove him, and may
make such order as to costs as it thinks fit.
(2)
Where the guardian for the suit, retires,
dies or is removed by the Court during the pendency of the suit, the Court
shall appoint a new guardian in his place.
Rule 12. Course to be followed by minor
plaintiff or applicant on attaining majority.
(1)
A minor plaintiff or a minor not a party to a
suit on whose behalf an application is pending shall, on attaining majority,
elect whether he will proceed with the suit or application.
(2)
Where lie elects to proceed with the suit or
application, he shall apply for an order discharging the next friend and for
leave to proceed in his own name.
(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.”.
(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.
(5)
Any application under this rule may be made
ex parte but no order discharging a next friend and permitting a minor
plaintiff to proceed in his own name shall be made without notice to the next
friend.
Rule 13. Where minor co-plaintiff attaining
majority desires to repudiate suit.
(1)
Where a minor co-plaintiff on attaining
majority desires to repudiate the suit, he shall apply to have his name struck
out as co-plaintiff; and the Court, if it finds that he is not a necessary
party, shall dismiss him from the suit on such terms as to costs or otherwise
as it thinks fit.
(2)
Notice of the application shall be served on
the next friend, on any co-plaintiff and on the defendant.
(3)
The costs of all parties of such application,
and of all or any proceedings theretofore had in the suit, shall be paid by
such persons as the Court directs.
(4)
Where the applicant is a necessary party to
the suit, the Court may direct him to be made a defendant.
Rule 14. Unreasonable or improper suit.
(1)
A minor on attaining majority may, if a sole
plaintiff, apply that a suit instituted in his name by his next friend be
dismissed on the ground that it was unreasonable or improper.
(2)
Notice of the application shall be served on
all the parties concerned; and the Court, upon being satisfied of such
unreasonableness or impropriety, may grant the application and order the next
friend to pay the costs of all parties in respect of the application and of
anything done in the suit, or make such other order as it thinks fit.
Rule [15.
Rules 1 to 14 (Except rule 2A) to apply to persons of unsound mind.
Rules 1 to 14 (except rule
2A) shall, so far as may be, apply to persons adjudged, before or during the
pendency of the suit, to be of unsound mind and shall also apply to persons
who, though not so adjudged, are found by the Court on enquiry to be incapable,
by reason of any mental infirmity, of protecting their interest when suing
being sued.]
Rule [16.
Savings.
(1)
Nothing contained in this Order shall apply
to the Ruler of a foreign State suing or being sued in the name of his State,
or being sued by the direction of the Central Government in the name of an
agent or in any other name.
(2)
Nothing contained in this Order shall be
construed as affecting or in any way derogating from the provisions of any
local law for the time being in force relating to suits by or against minors or
by or against lunatics or other persons of unsound mind.]
[ORDER XXXII-A SUITS RELATING TO MATTERS CONCERNING THE FAMILY
Rule 1. Application of the Order.
(1)
The provisions of this Order shall apply to
suits or proceedings relating to matters concerning the family.
(2)
In particular, and without prejudice to the
generality of the provisions of sub-rule (1), the provisions of this Order
shall apply to the following suits or proceedings concerning the family,
namely:
(a)
a suit or proceeding for matrimonial relief,
including a suit or proceedings for declaration as to the validity of a
marriage or as to the matrimonial status of any person;
(b)
a suit or proceeding for a declaration as to legitimacy
of any person;
(c)
a suit or proceeding in relation to the
guardianship of the person or the custody of any minor or other member of the
family, under a disability;
(d)
a suit or proceeding for maintenance;
(e)
a suit or proceeding as to the validity or effect
of an adoption;
(f)
a suit or proceeding, instituted by a member
of the family, relating to wills, intestacy and succession;
(g)
a suit or proceeding relating to any other
matter concerning the family in respect of which, the parties are subject to
their personal law.
(3)
So much of this Order as relates to a matter
provided for by a special law in respect of any suit or proceeding shall not
apply to that suit or proceeding.
Rule 2. Proceedings to be held in camera.
In every suit or proceeding
to which this Order applies, the proceedings may be held in camera if the Court
so desires and shall be so held if either party so desires.
Rule 3. Duty of Court to make efforts for
settlement.
(1)
In every suit or proceeding to which this
Order applied, an endeavour shall be made by the Court in the first instance,
where it is possible to do so consistent with the nature and circumstances of
the case, to assist the parties in arriving at a settlement. In respect of the
subject-matter of the suit.
(2)
If, in any such suit or proceeding, at any
stage it appears to the Court that there is a reasonable possibility of a
settlement between the parties, the Court may adjourn the proceeding for such
period as it thinks fit to enable attempts to be made to effect such a
settlement.
(3)
The power conferred by sub-rule (2) shall be
in addition to, and not in derogation of, any other power of the Court to
adjourn the proceedings.
Rule 4. Assistance of welfare expert.
In every suit or proceeding
to which this Order applies, it shall be open to the Court to secure the
services of such person (preferably a woman where available), whether related
to the parties or not, including a person professionally engaged in promoting
the welfare of the family as the Court may think fit, for the purpose of assisting
the Court in discharging the functions imposed by rule 3 of this Order.
Rule 5. Duty to enquire into facts.
In every suit or proceeding
to which this Order applies, it shall be the duty of the Court to inquire, so
far it reasonably can, into the facts alleged by the plaintiff and into any
facts alleged by the defendant.
Rule 6. “Family”—meaning of.
For the purposes of this
Order, each of the following shall be treated as constituting a family, namely:
(a)
(i) a man and his wife living together,
(ii) any child or children,
being issue of theirs; or of such man or such wife,
(iii) any child or children
being maintained by such man and wife;
(b)
a man not having a wife or not living
together with his wife, any child or children, being issue of his, and any child
or children being maintained by him;
(c)
a women not having it husband or not living
together with her husband, any child or children being issue of hers, and any
child or children being maintained by her;
(d)
a man or woman and his or her brother,
sister, ancestor or lineal descendant living with him or her; and
(e)
any combination of one or more of the groups
specified in clause (a), clause (b), clause (c) or clause (d) of this rule.
Explanation For the
avoidance of doubts, it is hereby declared that the provisions of rule 6 shall
be without any prejudice to the concept of “family” in any personal law or in
another law for the time being in force.]
ORDER XXXIII [652][SUITS BY INDIGENT PERSONS]
Rule 1. Suits may be instituted by indigent persons.
Subject to the following
provisions, any suit may be instituted by an [indigent
person].
[Explanation
1 A person is an indigent person,-
(a)
If he is not possessed of sufficient means
(other than property exempt from attachment in execution of a decree and the
subject-matter of the suit) to enable him to pay the fee prescribed by law for
the plaint in such suit, or
(b)
where no such fee is prescribed, if he is not
entitled to property worth one thousand rupees other than the property exempt
from attachment in execution of a decree, and the subject-matter of the suit.
Explanation II Any property
which is acquired by a person after the presentation of his application for
permission to sue as an indigent person, and before the decision of the
application, shall be taken into account in considering the question whether or
not the applicant is an indigent person.
Explanation III—Where the
plaintiff sues in a representative capacity, the question whether he is an
indigent person shall be determined with reference to the means possessed by
him in such capacity.]
Rule [1A.
Inquiry into the means of an indigent person.
Every inquiry into the
question whether or not a person is an indigent person shall be made, in the
first instance, by the chief ministerial officer of the Court, unless the Court
otherwise directs, and the Court may adopt the report of such officer as its
own finding or may itself make an inquiry into the question.]
Rule 2. Contents of application.
Every application for
permission to sue as an [indigent
person] shall contain the particulars required in regard to plaints in suits: a
schedule of any movable or immovable property belonging to the applicant, with
the estimated value thereof, shall be annexed thereto; and it shall be signed
and verified in the manner prescribed for the signing and verification of
pleadings.
Rule 3. Presentation of application.
Notwithstanding anything
contained in these rules, the application shall be presented to the Court by
the applicant in person, unless he is exempted from appearing in Court, in
which case the application may be presented by an authorised agent who can
answer all material questions relating to the application, and who may be
examined in the same manner as the party represented by him might have been
examined had such party attended in person:
[Provided
that, where there are more plaintiffs than one, it shall be sufficient if the
application is presented by one of the plaintiffs.]
Rule 4. Examination of applicant:
(1)
Where the application is in proper form and
duly presented, the Court may, if it thinks fit, examine the 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)
If presented by agent, Court may order
applicant to be examined by commission Where the application is presented by an
agent, the Court may, if it thinks fit, order that the applicant be examined by
a commission in the manner in which the examination of an absent witness may be
taken.
Rule 5. Rejection of application.
The Court shall reject an
application for permission to use as [an
indigent person]—
(a)
where it is not framed and presented in the
manner prescribed by rules 2 and 3, or
(b)
where the applicant is not [an
indigent person], or
(c)
where he has, within two months next before
the presentation of the application, disposed of any property fraudulently or
in order to be able to apply for permission to use as [an
indigent person]:
[Provided
that no application shall be rejected if, even after the value of the property
disposed of by the applicant is taken into account, the applicant would be
entitled to sue as an indigent person.] or
(d)
where his allegations do not show a cause of
action, or
(e)
where he has entered into any agreement with
reference to the subject-matter of the proposed suit under which any other
person has obtained an interest in such subject-matter; [or]
[(f)
where the allegations, made by the applicant in the application show that the
suit would be barred by any law for the time being in force, or
(g) where any other person has entered into an
agreement with him to finance the litigation.]
Rule 6. Notice of day for receiving evidence
of applicant’s indigency.
Where the Court sees no
reason to reject the application on any of the grounds stated in rule 5, it
shall fix a day (of which at least ten day's clear notice shall be given to the
opposite party and the Government pleader) for receiving such evidence as the
applicant may adduce in proof of his indigency, and for hearing any evidence
which may be adduced in disproof thereof.
Rule 17. Procedure at hearing.
(1)
On the day so fixed or as soon thereafter as
may be convenient the Court shall examine the witnesses (if any) produced by
either party, and may examine the applicant or his agent, and shall may [a
full record of their evidence].
[(1A)
The examination of the witnesses under sub-rule (1) shall be confined to the
matters specified in clause (b), clause (c) and clause (e) of rule 5 but the
examination of the applicant or his agent may relate to any of the matters
specified in rule 5.]
(2)
The Court shall also hear any argument which
the 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 [under
rule 6 or under this rule], the applicant is or is not subject to any of the
prohibitions specified in rule 5.
(3)
The Court shall then either allow or refuse
to allow the applicant to sue as [an
indigent person].
Rule 8. Procedure if application admitted.
Where the application is
granted, it shall be numbered and registered, and shall be deemed the plaint in
the suit, and the suit shall proceed in all other respects as a suit instituted
in the ordinary manner, except that the plaintiff shall not be liable to pay
any court-fee [or
fees payable for service of process] in respect of any petition, appointment of
a pleader or other proceeding connected with the suit.
Rule 9. Withdrawal of permission to sue as an
indigent person.
The Court may, on the
application of the defendant, or of the Government pleader, of which seven
days, clear notice in writing has been given to the plaintiff, order that the
permission granted to the plaintiff to sue as an indigent person be withdrawn—
(a)
if he is guilty of vexatious or improper
conduct in the course of the suit;
(b)
if it appears that his means are such that he
ought not to continue to sue as [an
indigent person]; or
(c)
if he has entered into any agreement with
reference to the subject-matter of the suit under which any other person has
obtained an interest in such subject-matter.
Rule [9A.
Court to assign a pleader to an unrepresented indigent person.
(1)
Where a person, who is permitted to sue as an
indigent person, is not represented by a pleader, the Court-may, if the
circumstances of the case so require, assign a pleader to him.
(2)
The High Court may, with the previous
approval of the State Government, make rules providing for-
(a)
the mode of selecting pleaders to be assigned
under sub-rule (1);
(b)
the facilities to be provided to such
pleaders by the Court;
(c)
any other matter which is required to be or
may be provided by the rules for giving effect to the provisions of sub-rule
(1).]
Rule 10. Costs where indigent person
succeeds.
Where the plaintiff succeeds
in the suit, the Court shall calculate the amount of court-fees which would
have been paid by the plaintiff if he had not been permitted to sue as [an
indigent person]; such amount shall be recoverable by the [State
Government] from any party ordered by the decree to pay the same and shall be a
first charge, on the subject-matter of the suit.
Rule 11. Procedure where indigent person
fails.
Where the plaintiff fails in
the suit or the permission granted to him to sue as an indigent person has been
withdrawn, or where the suit is withdrawn or dismisses,
(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
such service [or
to present copies of the plaint or concise statement], or
(b)
because the plaintiff does not appear when
the suit is called on for hearing, the Court shall order the plaintiff, or any
person added as a co-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 [an
indigent person].
Rule [11A.
Procedure where indigent person’s suit abates.
Where the suit abates by
reason of the death of the plaintiff or of any person added as a co-plaintiff,
the Court shall order that the amount of court-fees which would have been paid
by the plaintiff if he had not been permitted to sue as [an
indigent person] shall be recoverable by the State Government from the estate
of the deceased plaintiff.]
Rule 12. State Government may apply for
payment of court-fees.
The [State
Government] shall have the right at any time to apply to the Court to make an
order for the payment of court-fees under rule 10, rule 11 or [rule
11A].
Rule 13. State Government to be deemed a
party.
All matters arising between
the [State
Government] and any party to the suit under rule 10, rule 11, [rule
11A] or rule 12 shall be deemed to be questions arising between the parties to
the suit within the meaning of section 47.
Rule [14.
Recovery of amount of court-fees.
Where an order is made under
rule 10, rule 11 or rule 11A, the court shall forthwith cause a copy of the
decree or order to be forwarded to the Collector who may, without prejudice to
any other mode of recovery, recover the amount of court-fees specified therein
from the person or property liable for the payment as if it were an arrear or
land revenue.]
Rule 15. Refusal to allow applicant to sue as
an indigent person to bar subsequent application of like nature.
An order refusing to allow
the applicant to sue as [an
indigent person] shall be a bar to any subsequent application of the like
nature by him in respect of the same right to sue; but the applicant shall be
at liberty to institute a suit in the ordinary manner in respect of such right;
[provided
that the plaint shall be rejected if he does not pay, either at the time of the
institution of the suit or within such time thereafter as the Court may allow,]
the costs (if any) incurred by the [State
Government] and by the opposite party in opposing his application for leave to
sue as [an
indigent person].
Rule [15A.
Grant of time for payment of court-fee.
Nothing contained in rule 5,
rule 7 or rule 15 shall prevent a Court, while rejecting an application under
rule 5 or refusing an application under rule 7, from granting time to the
applicant to pay the requisite court-fee within such time as may be fixed by
the Court or extended by it from time to time; and upon such payment and on payment
of the costs referred to in ***
rule 15 within that time, the suit shall be deemed to have been instituted on
the date on which the application for permission to sue as an indigent person
was presented.]
Rule 16. Costs.
The costs of an application
for permission to sue as an [indigent
person] and of an inquiry into indigency shall be costs in the suit.
Rule [17.
Defence by an indigent person.
Any defendant, who desire to
plead a set-off or counter- claim, may be allowed to set up such claim as an
indigent person, and the rules contained in this Order shall so far as may be,
apply to him as if he were a plaintiff and his written statement were a plaint.
Rule 18. Power of Government to provide for
free legal services to indigent persons.
(1)
Subject to the provisions of this Order, the
Central or State Government may make such supplementary provisions as it thinks
fit for providing free legal services to those who have been permitted to sue
as indigent persons.
(2)
The High Court may, with the previous approval
of the State Government, make rules for carrying out the supplementary
provisions made by the Central or State Government for providing free legal
services to indigent persons referred to in sub-rule (1), and such rules may
include the nature and extent of such legal services, the conditions under
which they may be made available, the matters in respect of which, and the
agencies through which, such services may be rendered.]
ORDER XXXIV SUITS RELATING TO MORTGAGES OF IMMOVABLE PROPERTY
Rule 1. Parties to suits for foreclosure sale and redemption.
Subject to the provisions of
this Code, all persons having an interest either in the mortgage-security or in
the right of redemption shall be joined as parties to any suit relating to the
mortgage.
Explanation A puisne
mortgagee may sue for foreclosure or for sale without making the prior
mortgagee a party to the suit; and a prior mortgagee need not be joined in a
suit to redeem a subsequent mortgage.
Rule [2.
Preliminary decree in foreclosure suit.
(1)
In a suit for foreclosure, if the plaintiff
succeeds, the Court shall pass a preliminary decree-
(a)
ordering that an account be taken of what was
due to the plaintiff at the date of such decree for-
(i)
principal and interest on the mortgage,
(ii)
the costs of suit, if any, awarded to him,
and
(iii)
other costs, charges and expenses properly
incurred by him up to that date in respect of his mortgage-security, together
with interest thereon; or
(b)
declaring the amount so due at that date; and
(c)
directing-
(i)
that, if the defendant pays into Court the
amount so found or declared due on or before such date as the Court may fix
within six months from the date on which the Court confirms and countersigns
the account taken under clause (a), or from the date on which such amount is
declared in Court under clause (b), as the case may be, and thereafter pays
such amount as may be adjudged due in respect of subsequent costs, charges and
expenses as provided in rule 10, together with subsequent interest on such 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 property, and shall, if so
required, re-transfer the property to the defendant at his cost free from the
mortgage and from all incumbrances created by the plaintiff or any person
claiming under him, or, where the plaintiff claims by derived title, by those
under whom he claims, and shall also, if necessary, put the defendant in possession
of the property; and
(ii)
that, if payment of the amount found or
declared due under or by the preliminary decree is not made on or before the
date so fixed, or the defendant fails to pay, within such time as the Court may
fix, the amount adjudged due in respect of subsequent costs, charges, expenses
and interest, the plaintiff shall be entitled to apply for a final decree
debarring the defendant from all right to redeem the property.
(2)
The Court may, on good cause shown and upon
terms to be fixed by the Court, from time to time, at any time before a final
decree is passed, extend the time fixed for the payment of the amount found or
declared due under sub-rule (1) or of the amount adjudged due in respect of
subsequent costs, charges, expenses and interest.
(3)
Where, in a suit for foreclosure, subsequent
mortgagees or persons deriving title from, or subrogated to the rights of, any
such mortgagees are joined as parties, the preliminary decree shall provide for
the adjudication of the respective rights and liabilities of the parties to the
suit in the manner and form set forth in Form No. 9 or Form No. 10, as the case
may be, of Appendix D with such variations as the circumstances of the case may
require.
Rule 3. Final decree in foreclosure suit.
(1)
Where, before a final decree debarring the
defendant from all right to redeem the mortgaged property has been passed, the
defendant makes payment into Court of all amounts due from him under sub-rule
(1) of rule 2, the Court shall, on application made by the defendant in this
behalf, pass a final decree-
(a)
ordering the plaintiff to deliver up the
documents referred to in the preliminary decree, and, if necessary,-
(b)
ordering him to re-transfer at the cost or
the defendant the mortgaged property as directed in the said decree, and also,
if necessary,-
(c)
ordering him to put the defendant in
possession of the property.
(2)
Where payment in accordance with sub-rule (1)
has not been made, the Court shall, on application made by the plaintiff in
this behalf, pass a final decree declaring that the defendant and all persons
claiming through or under him or debarred from all right to redeem the
mortgaged property and also, if necessary, ordering the defendant to put the
plaintiff in possession of the property.
(3)
On the passing of a final decree under
sub-rule (2), all liabilities to which the defendant is subject in respect of
the mortgage or on account of the suit shall be deemed to have been discharged.
Rule 4. Preliminary decree in suit for sale.
(1)
In a suit for sale, if the plaintiff
succeeds, the Court shall pass a preliminary decree to the effect mentioned in
clauses (a), (b) and (c) (i) of sub-rule (1) of rule 2, and further directing
that, in default of the defendant paying as therein mentioned, the plaintiff
shall be entitled to apply for a final decree directing that the mortgaged
property or a sufficient part thereof be sold, and the proceeds of the sale
(after deduction therefrom of the expenses of the sale) be paid into Court and
applied in payment of what has been found or declared under or by the
preliminary decree due to the plaintiff, together with such amount as may have
been adjudged due in respect of subsequent costs, charges, expenses and
interest, and the balance, if any, be paid to the defendant or other persons entitled
to receive the same.
(2)
The Court may, on good cause shown and upon
terms to be fixed by the Court, from time to time, at any time before a final
decree for sale is passed, extend the time fixed for the payment of the amount
found or declared due under sub-rule (1) or of the amount adjudged due in
respect of subsequent costs, charges, expenses and interest.
(3)
Power to decree sale in foreclosure-suit In a
suit for foreclosure in the case of an anomalous mortgage, if the plaintiff
succeeds, the Court may, at the instance of any party to the suit or of any
other person interested in the mortgage-security or the right of redemption,
pass a like decree (in lieu of a decree for foreclosure) on such terms as it
thinks fit, including the deposit in Court of a reasonable sum fixed by the
Court to meet the expenses of the sale and to secure the performance of the
terms.
(4)
Where, in a suit for sale or a suit
foreclosure in which sale is ordered, subsequent mortgages or persons deriving
title from, or subrogated to the rights of, any such mortgagees are joined as
parties, the preliminary decree referred to in sub-rule (1) shall provide for
the adjudication of the respective rights and liabilities of the parties to the
suit in the manner and form set forth in Form No. 9, Form No. 10 or Form No. 11
as the case may be, of Appendix D with such variations as the circumstances of
the case may require.
Rule 5. Final decree in suit for sale.
(1)
Where, on or before the day fixed or at any
time before the confirmation of a sale made in pursuance of a final decree
passed under sub-rule (3) of this rule, the defendant makes payment into Court
of all amounts due from him under sub-rule (1) of rule 4, the Court shall, on
application made by the defendant in this behalf, pass a final decree or, if
such decree has been passed, an order-
(a)
ordering the plaintiff to deliver up the
documents referred to in the preliminary decree, and, if necessary,-
(b)
ordering him to transfer the mortgaged
property as directed in the said decree, and, also, if necessary,—
(c)
ordering him to put the defendant in
possession of the property.
(2)
Where the mortgaged property or part thereof
has been sold in pursuance of a decree passed under sub-rule (3) of this rule,
the Court shall not pass an order under sub-rule (1) of this rule, unless the
defendant, in addition to the amount mentioned in sub-rule (1), deposits in
Court for payment to the purchaser a sum equal to five per cent. of the amount
of the purchase-money paid into Court by the purchaser.
Where such deposit has been
made, the purchaser shall be entitled to an order for repayment of the amount
of the purchase-money paid into Court by him, together with a sum equal to five
per cent. thereof.
(3)
Where payment in accordance with sub-rule (1)
has not been made, the Court shall, on application made by the plaintiff in
this behalf, pass a final decree directing that the mortgaged property or a
sufficient part thereof be sold, and that the proceeds of the sale be dealt
with in the manner provided in sub-rule (1) of rule 4.
Rule 6. Recovery of balance due on mortgage
in suit for sale.
Where the net proceeds of
any sale held under [rule
5] are found insufficient to pay the amount due to the plaintiff, the Court, on
application by him may, if the balance is legally recoverable from the
defendant otherwise than out of the property sold, pass a decree for such
balance.
Rule 7. Preliminary decree in redemption
suit.
(1)
In a suit for redemption, if the plaintiff
succeeds, the Court shall pass a preliminary decree—
(a)
ordering that an account be taken of what was
due to the defendant at the date of such decree for—
(i)
principal and interest on the mortgage,
(ii)
the costs of suit, if any, awarded to him,
and
(iii)
other costs, charges and expenses properly
incurred by him up to that date, in respect of mortgage-security, together with
interest thereon; or
(b)
declaring the amount so due at that date; and
(c)
directing—
(i)
that, if the plaintiff pays into Court the
amount so found or declared due on or before such date as the Court may fix
within six months from the date on which the Court confirms and countersigns
the account taken under clause (a), or from the date on which such amount is
declared in Court under clause (b), as the case may be, and thereafter pays
such amount as may be adjudged due in respect of subsequent costs, charges and
expenses as provided in rule 10, together with subsequent interest on such sums
respectively as provided in rule 11, the defendant shall deliver up to the
plaintiff, or to such person as the plaintiff appoints, all documents in his
possession or power relating to the mortgaged property, and shall, if so
required, retransfer the property to the plaintiff at his cost free from the
mortgage and from all encumbrances created by the defendant or any person
claiming under him where the defendant claims by derived title, by those under
whom the claims, and shall also, if necessary put the plaintiff in possession
of the property; and
(ii)
that, if payment of the amount found or
declared due under or by the preliminary decree is not made on or before the
date so fixed, or the plaintiff fails to pay, within such time as the Court may
fix, the amount adjudged due in respect of subsequent costs, charges, expenses
and interest, the defendant shall be entitled to apply for a final decree—
(a)
in the case of a mortgage other than a
usufructuary mortgage, a mortgage by conditional sale, or an anomalous mortgage
the terms of which provide for foreclosure only and not for sale, that the
mortgage property, be sold, or
(b)
in the case of a mortgage by conditional sale
or such an anomalous mortgage as aforesaid, that the plaintiff be debarred from
all right to redeem the property.
(2)
The Court may, on good cause shown and upon
terms to be fixed by the Court, from time to time, at any time before the
passing of a final decree for foreclosure or sale, as the case may be, extend
the time fixed for the payment of the amount found or declared due under
sub-rule (1) or of the amount adjudged due in respect of subsequent costs,
charges, expenses and interest.
Rule 8. Final decree in redemption suit.
(1)
Where, before a final decree debarring the
plaintiff from all right to redeem the mortgaged property has been passed or
before the confirmation of a sale held in pursuance of a final decree passed
under sub-rule (3) of this rule, the plaintiff makes payment into Court of all
amounts due from him under sub-rule (1) of rule 7, the Court shall, on
application made by the plaintiff in this behalf, pass a final decree or, if
such decree has been passed, an order—
(a)
ordering the defendant to delivery up the
documents referred to in the preliminary decree, and, if necessary,-
(b)
ordering him to re-transfer at the cost of
the plaintiff the mortgaged property as directed in the said decree, and, also,
if necessary,-
(c)
ordering him to put the plaintiff in
possession of the property.
(2)
Where the mortgaged property or a part
thereof has been sold in pursuance of a decree passed under sub-rule (3) of
this rule, the Court shall not pass an order under sub-rule (1) of this rule,
unless the plaintiff, in addition to the amount mentioned in sub-rule (1),
deposits in Court for payment to the purchaser a sum equal to five per cent. of
the amount of the purchase-money paid into Court by the purchaser.
Where such deposit has been
made, the purchaser shall be entitled to an order for repayment of the amount
of the purchase-money paid into Court by him, together with a sum equal to five
per cent. thereof.
(3)
Where payment in accordance with sub-rule (1)
has not been made, the Court shall, on application made by the defendant in
this behalf,
(a)
in the case of a mortgage by conditional sale
or of such an anomalous mortgage as is hereinbefore referred to in rule 7, pass
a final decree declaring that the plaintiff and all persons claiming under him
are debarred from all right to redeem the mortgaged property and, also, if
necessary, ordering the plaintiff to put the defendant in possession of the
mortgaged property; or
(b)
in the case of any other mortgage, not being
a usufructuary mortgage, pass final decree that the mortgaged property or a
sufficient part thereof be sold, and the proceeds of the sale (after deduction
therefrom of the expenses of the sale) be paid into Court and applied in
payment of what is found due to the defendant, and the balance, if any, be paid
to the plaintiff or other persons entitled to receive the same.]
Rule [8A.
Recovery of balance due on mortgage in suit for redemption.
Where the net proceeds of
any sale held under [rule
8] are found insufficient to pay the amount due to the defendant, the Court, [on
application by him in execution], may, if the balance is legally recoverable
from the plaintiff otherwise than out of the property sold, pass a decree for
such balance.]
Rule 9. Decree where nothing is found due or
where mortgagee has been overpaid.
Notwithstanding anything
hereinbefore contained, if it appears, upon taking the account referred to in
rule 7, that nothing is due to the defendant or that he has been overpaid, the
Court shall pass a decree directing the defendant, if so require, to
re-transfer the property and to pay to the plaintiff the amount which may be
found due to him; and the plaintiff shall, if necessary, be put in possession
of the mortgaged property.
Rule [10.
Costs of mortgagee subsequent to decree.
In finally adjusting the
amount to be paid to a mortgagee in case of a foreclosure, sale or redemption,
the Court shall, unless in the case of costs of the suit the conduct of the
mortgagee has been such as to disentitle him thereto, add to the mortgage-money
such costs of the suit and other costs, charges and expenses as have been
properly incurred by him since the date of the preliminary decree for
foreclosure, sale or redemption up to the time of actual payment:]
[Provided
that where the mortgagor, before or at the time of the institution of the suit,
tenders or deposits the amount due on the mortgage, or such amount as is not
subsequently deficient in the opinion of the Court, he shall not be ordered to
pay the costs of the suit to the mortgagee and the mortgagor shall be entitled
to recover his own costs of the suit from the mortgagee, unless the Court, for
reasons to be recorded, otherwise directs.]
Rule [10A.
Power of Court to direct mortgagee to pay mesne profits.
Where in a suit for
foreclosure, the mortgagor has, before or at the time of the institution of the
suit, tendered or deposited the sum due on the mortgage, or such sum as is not
substantially deficient in the opinion of the Court, the Court shall direct the
mortgagee to pay to the mortgagor mesne profits for the period beginning with
the institution of the suit].
Rule 11. Payment of interest.
In any decree passed in a
suit for foreclosure, sale or redemption, where interest is legally
recoverable, the Court may order payment of interest to the mortgagee as
follows, namely:-
(a)
interest up to the date on or before which
payment of the amount found or declared due is under the preliminary decree to
be made by the mortgagor or other person redeeming the mortgage-
(i)
on the principal amount found or declared due
on the mortgage,—at the rate payable on the principal, or, where no such rate
is fixed, at such rate as the Court deems reasonable,
(ii)
* *
* * *and
(iii)
on the amount adjudged due to the mortgagee
for costs, charges and expenses properly incurred by the mortgagee in respect
of the mortgage-security up to the date of the preliminary decree and added to
the mortgage-money,—at the rate agreed between the parties or, failing such
rate, [at
such rate not exceeding six per cent. per annum as the Court deems reasonable];
and
[(b)
subsequent interest up to the date of realisation or actual payment on the
aggregate of the principal sums specified in clause (a) as calculated in
accordance with that clause at such rate as the Court deems reasonable.]
Rule 12. Sale of property subject to prior
mortgage.
Where any property the sale
of which is directed under this Order is subject to a prior mortgage, the Court
may, with the consent of the prior mortgagee, direct that the property- be sold
free from the same, giving to such prior mortgagee the same interest in the
proceeds of the sale as he had in the property sold.
Rule 13. Application of proceeds.
(1)
Such proceeds shall be brought into Court and
applied as follows:—
first, in payment of all expenses
incident to the sale or properly incurred in any attempted sale;
secondly, in payment of
whatever is due to the prior mortgagee on account of the prior mortgage, and of
costs, properly incurred in connection therewith;
thirdly, in payment in all
interest due on account of the mortgage in consequence whereof the sale was
directed, and of the costs of the suit in which the decree directing the sale
was made;
fourthly, in payment of the
principal money due on account of that mortgage; and
lastly, the residue (if any)
shall be paid to the person proving himself to be interested in the property
sold, or if there are more such persons than one, than two, to such persons
according to their respective interests therein or upon their joint receipt.
(2)
Nothing in this rule or in rule 12 shall be
deemed to affect the powers conferred by section 57 of the Transfer of Property
Act, 1882 (4 of 1882).
Rule 14. Suit for sale necessary for bringing
mortgaged property to sale.
(1)
Where a mortgage has obtained a decree for the
payment of money in satisfaction of a claim arising under the mortgage, he
shall not be entitled to bring the mortgaged property to sale otherwise than by
instituting a suit for sale in enforcement of the mortgage, and he may
institute such suit notwithstanding anything contained in Order II, rule 2.
(2)
Nothing in sub-rule (1) shall apply to any
territories to which the Transfer of Property Act, 1882 (4 of 1882), has not
been extended.
Rule [15.
Mortgages by the deposit of title deeds and charges.
[(1)]
All the provisions contained in this Order which apply to a simple mortgage
shall, so far as may be, apply to a mortgage by deposit of title-deeds within
the meaning of section 58, and to a charge within the meaning of section 100 of
the Transfer of Property Act, 1882 (4 of 1882);
[(2)
Where a decree orders payment of money and charges it on immovable property on
default of payment, the amount may be realised by sale of that property in
execution of that decree.]
ORDER XXXV INTERPLEADER
Rule 1. Plaint in interpleader-suit.
In every suit of
interpleader the plaint shall, in addition to the other statements necessary
for plaints, state.
(a)
that the plaintiff claims no interest in the
subject-matter in dispute other than for charges or costs;
(b)
the claims made by the defendants severally;
and
(c)
that there is no collusion between the
plaintiff and any of the defendants.
Rule 2. Payment of thing claimed into Court.
Where the thing claimed is
capable of being paid into Court or placed in the custody of the Court, the
plaintiff may be required to so pay or place it before he can be entitled to
any order in the suit.
Rule 3. Procedure where defendant is suing
plaintiff.
Where any of the defendants
in an interpleader-suit is actually suing the plaintiff in respect the
subject-matter of such suit, the Court in which the suit against the plaintiff
is pending shall, on being informed by the Court in which the interpleader-suit
has been instituted, stay the proceedings as against him; and his costs in the
suit so stayed may be provided for in such suit; but if, and in so far as, they
are not provided for in that suit, they may be added to his costs incurred in
the interpleader-suit.
Rule 4. Procedure at first hearing.
(1)
At the first hearing the Court may—
(a)
declare that the plaintiff is discharged from
all liability to the defendants in respect of the thing claimed, award him his
costs, and dismiss him from the suit; or
(b)
if it thinks that justice or convenience so
require, retain all parties until the final disposal of the suit.
(2)
Where the Court finds that the admission of
the parties or other evidence enable it to do so, it may adjudicate the title
to the thing claimed.
(3)
Where the admissions of the parties do not
enable the Court so to adjudicate, it may direct—
(a)
that an issue or issues between the parties
be framed and tried, and
(b)
that any claimant be made a plaintiff in lieu
of or in addition to the original plaintiff, and shall proceed to try the suit
in the ordinary, manner.
Rule 5. Agents and tenants may not institute
interpleader suits.
Nothing in this Order shall
be deemed to enable agents to sue their principals, or tenants to sue their
landlords, for the purpose of compelling them to interplead with any persons
other than persons making claim through such principals or landlords.
Illustrations
(a)
A deposits a box of jewels with B as his
agent. C alleges that the jewels were wrongfully obtained from him by A, and
claims them from B. B cannot institute an interpleader-suit against A and C.
(b)
A deposits a box of jewels with B as his
agent. He then writes to C for the purpose of making the jewels a security for
a debt due from himself to C. A afterwards alleges that C’s debt is satisfied,
and C alleges the contrary. Both claim the jewels from B. B may institute in
interpleader-suit against A and C.
Rule 6. Charge for plaintiff’s costs.
Where the suit is properly
instituted the Court may provide for the costs of the original plaintiff by
giving him a charge on the thing claimed or in some other effectual way.
ORDER XXXVI SPECIAL CASE
Rule 1. Power to state case for Court’s opinion.
(1)
Parties claiming to be interested in the
decision of any question of fact or law may enter into an agreement in writing
stating such question in the form of a case for the opinion of the Court, and
providing that, upon the finding of the Court with respect to such question,-
(a)
a sum of money fixed by the parties or to be
determined by the Court shall be paid by one of the parties to the other of
them; or
(b)
some property, movable or immovable, specified
in the agreement, shall be delivered by one of the parties to the other of
them; or
(c)
one or more of the parties shall do, or
refrain from doing, some other particular act specified in the agreement.
(2)
Every case stated under this rule shall be
divided into consecutively numbered paragraphs, and shall concisely state such
facts and specify such documents as may be necessary to enable the Court to
decide the question raised thereby.
Rule 2. Where value of subject-matter must be
stated.
Where the agreement is for
the delivery of any property, or for the doing, or the refraining from doing,
any particular act, the estimated value of the property to be delivered, or to
which the act specified has reference, shall be stated in the agreement.
Rule 3. Agreement to be filed and registered
as suit.
(1)
The agreement, if framed in accordance with
the rules hereinbefore contained, may be filed [with
an application] in the Court which would have jurisdiction to entertain a suit,
the amount or value of the subject-matter of which is the same as the amount or
value of the subject-matter of the agreement.
(2)
[The
application] when so filed, shall be numbered and registered as a suit between
one or more of the parties claiming to be interested as plaintiff or plaintiffs,
and the other or the others of them as defendant or defendants; and notice
shall be given to all the parties to the agreement, other than the party or
parties by whom [the
application was presented.]
Rule 4. Parties to be subject to Court’s
jurisdiction.
Where the agreement has been
filed, the parties to it shall be subject to the jurisdiction of the Court and
shall be bound by the statements contained therein.
Rule 5. Hearing and disposal of case.
(1)
The case shall be set down for hearing as a
suit instituted in the ordinary manner, and the provisions of this Code shall
apply to such suit so far as the same are applicable.
(2)
Where the Court is satisfied, after
examination of the parties, or after taking such evidence as it thinks fit—
(a)
that the agreement was duly executed by them,
(b)
that they have a bona fide interest in
question stated therein, and
(c)
that the same is fit to be decided, it shall
proceed to pronounce judgment thereon, in the same way as in an ordinary suit,
and upon the judgment so pronounced a decree shall follow.
Rule [6.
No appeal from a decree passed under rule 5.
No appeal shall lie from a
decree passed under rule 5.]
ORDER XXXVII SUMMARYPROCEDURE [708]***
Rule [1. Courts and
classes of suits to which the Order is to apply.
(1)
This Order shall apply to the following
Courts, namely:-
(a)
High Courts, City Civil Courts and Courts of
Small Causes; and
(b)
other Courts:
Provided that in respect of
the Courts referred to in clause (b), the High Court may, by notification in
the Official Gazette, restrict the operation of this Order only to such
categories of suits as it deems proper, and may also, from time to time, as the
circumstances of the case may require, by subsequent notification in the
Official Gazette, further restrict, enlarge or vary, the categories of suits to
be brought under the operation of this Order as it deems proper.
(2)
Subject to the provisions of sub-rule (1),
the Order applies to the following classes of suits, namely:
(a)
suits upon bills of exchange, hundies and
promissory notes;
(b)
suits in which the plaintiff seeks only to
recover a debt or liquidated demand in money payable by the defendant, with or
without interest, arising,-
(i)
on a written contract, or
(ii)
on an enactment, where the sum sought to be
recovered is a fixed sum of money or in the nature of a debt other than a
penalty; or
(iii)
on a guarantee, where the claim against the
principal is in respect of a debt or liquidated demand only.]
Rule [2.
Institution of summary suits.
(1)
A suit, to which this Order applies, may if
the plaintiff desires to proceed hereunder, be instituted by presenting a
plaint which shall contain,-
(a)
a specific averment to the effect that the
suit is filed under this Order;
(b)
that no relief, which does not fall within
the ambit of this rule, has been claimed in the plaint;
and
(c)
the following inscription, immediately below
the number of the suit in the title of the suit, namely:-
“(Under Order XXXVII of the
Code of Civil Procedure, 1908).”
(2)
The summons of the suit shall be in Form No.
4 in Appendix B or in such other Form as may, from time to time, be prescribed.
(3)
The defendant shall not defend the suit
referred to in sub-rule (1) unless he enters an appearance and in default of
his entering an appearance the allegations in the plaint shall be deemed to be
admitted and the plaintiff shall be entitled to a decree for any sum, not
exceeding the sum mentioned in the summons, together with interest at the rate
specified, if any, up to the date of the decree and such sum for costs as may
be determined by the High Court from time to time by rules made in that behalf
and such decree may be executed forthwith.]
Rule [3.
Procedure for the appearance of defendant.
(1)
In a suit to which this Order applies, the
plaintiff shall, together with the summons under rule 2, serve on the defendant
a copy of the plaint and annexures thereto and the defendant may, at any time
within ten days of such service, enter an appearance either in person or by
pleader and, in either case, he shall file in Court an address for service of
notices on him.
(2)
Unless otherwise ordered, all summonses,
notices and other judicial processes, required to be served on the defendant,
shall be deemed to have been duly served on him if they are left at the address
given by him for such service.
(3)
On the day of entering the appearance, notice
of such appearance shall be given by the defendant to the plaintiff’s pleader,
or, if the plaintiff sues in person, to the plaintiff himself, either by notice
delivered at or sent by a pre-paid letter directed to the address of the plaintiff's
pleader or of the plaintiff, as the case may be.
(4)
If the defendant enters an appearance, the
plaintiff shall thereafter serve on the defendant a summons for judgment in
Form No. 4A in Appendix B or such other Form as may be prescribed from time to
time, returnable not less than ten days from the date of service supported by
an affidavit verifying the cause of action and the amount claimed and stating
that in his belief there is no defence to the suit.
(5)
The defendant may, at any time within ten days
from the service of such summons for judgment, by affidavit or otherwise
disclosing such facts as may be deemed sufficient to entitle him to defend,
apply on such summons for leave to defend such suit, and leave to defend may be
granted to him unconditionally or upon such terms as may appear to the Court or
Judge to be just:
Provided that leave to
defend shall not be refused unless the Court is satisfied that the facts
disclosed by the defendant do not indicate that he has a substantial defence to
raise or that the defence intended to be put up by the defendant is frivolous
or vexatious:
Provided further that, where
a part of the amount claimed by the plaintiff is admitted by the defendant to
be due from him, leave to defend the suit shall not be granted unless the
amount so admitted to be due is deposited by the defendant in Court.
(6)
At the hearing of such summons for judgment,-
(a)
if the defendant has not applied for leave to
defend, or if such application has been made and is refused, the plaintiff
shall be entitled to judgment forthwith; or
(b)
if the defendant is permitted to defend as to
the whole or any part of the claim, the Court or Judge may direct him to give
such security and within such time as may be fixed by the Court or Judge and
that, on failure to give such security within the time specified by the Court
or Judge or to carry out such other directions as may have been given by the
Court or Judge, the plaintiff shall be entitled to judgment forthwith.
(7)
The Court or Judge may, for sufficient cause shown
by the defendant, excuse the delay of the defendant in entering an appearance
or in applying for leave to defend the suit.]
Rule 4. Power to set aside decree.
After decree the Court may,
under special circumstances set aside the decree, and if necessary stay or set
aside execution, and may give leave to the defendant to appear to the summons
and to defend the suit, if it seems reasonable to the Court so to do, and on
such terms as the Court thinks fit.
Rule 5. Power to order bill, etc., to be
deposited with officer of Court.
In any proceeding under this
Order the Court may order the bill, hundi or note on which the suit is founded
to be forthwith deposited with an officer of the Court, and may further order
that all proceedings shall be stayed until the plaintiff gives security for the
costs thereof.
Rule 6. Recovery of cost of noting
non-acceptance of dishonoured bill or note.
The holder of every
dishonoured bill of exchange or promissiory note shall have the same remedies
for the recovery of the expenses incurred in noting the same for non-acceptance
or non-payment, or otherwise, by reason of such dishonour, as he has under this
Order for the recovery of the amount of such bill or note.
Rule 7. Procedure in suits.
Save as provided by this
Order, the procedure in suits hereunder shall be the same as the procedure in
suits instituted in the ordinary manner.
ORDER XXXVIII ARREST AND ATTACHMENT BEFORE JUDGMENT
Arrest before judgment
Rule 1. Where defendant may be called upon to
furnish security for appearance.
Where at any stage of a
suit, other than a suit of the nature referred to in section 16, clauses (a) to
(d), the Court is satisfied, by affidavit or otherwise,-
(a)
that the defendant, with intent to delay the
plaintiff, or to avoid any process of the Court or to obstruct or delay the
execution of any decree that may be passed against him,-
(i)
has absconded or left the local limits of the
jurisdiction of the Court, or
(ii)
is about to abscond or leave the local limits
of the jurisdiction of the Court, or
(iii)
has disposed of or removed from the local
limits of the jurisdiction of the Court his property or any part thereof, or
(b)
that the defendant is about to leave [India]
under circumstances affording reasonable probability that the plaintiff will or
may thereby be obstructed or delayed in the execution of any decree that may be
passed against the defendant in the suit, the Court may issue a warrant to
arrest the defendant and bring him before the Court to show cause why he should
not furnish security for his appearance:
Provided that the defendant
shall not be arrested if he pays to the officer entrusted with the execution of
the warrant any sum specified in the warrant as sufficient to satisfy the
plaintiff's claim; and such sum shall be held in deposit by the Court until the
suit is disposed of or until the further order of the Court.
Rule 2. Security.
(1)
Where the defendant fails to show such cause
the Court shall order him either to deposit in Court money or other property
sufficient to answer the claim against him, or to furnish security for his
appearance at any time when called upon while the suit is pending and until
satisfaction of any decree that may be passed against him in the suit, or make
such order as it thinks fit in regard to the sum which may have been paid by
the defendant under the proviso to the last preceding rule.
(2)
Every surety for the appearance of a
defendant shall bind himself, in default of such appearance, to pay any sum of
money which the defendant may be ordered to pay in the suit.
Rule 3. Procedure on application by surety to
be discharged.
(1)
A surety for the appearance of a defendant
may at any time apply to the Court in which he became such surety to be
discharged from his obligation.
(2)
On such application being made, the Court
shall summon the defendant to appear or, if it thinks fit, may issue a warrant
for his arrest in the first instance.
(3)
On the appearance of the defendant in
pursuance of the summons or warrant, or on his voluntary surrender, the Court
shall direct the surety to be discharged from his obligation, and shall call
upon the defendant to find fresh security.
Rule 4. Procedure where defendant fails to
furnish security or find fresh security.
Where the defendant fails to
comply with any order under rule 2 or rule 3, the Court may commit him to the
civil prison until the decision of the suit or, where a decree is passed
against the defendant, until the decree has been satisfied:
Provided that no person
shall be detained in prison under this rule in any case for a longer period
than six months, nor for a longer period than six weeks when the amount or
value of the subject-matter of the suit does not exceed fifty rupees:
Provided also that no person
shall be detained in prison under this rule after he has complied with such
order.
Attachment
before judgment
Rule 5. Where defendant may be called upon to
furnish security for production of property.
(1)
Where, at any stage of a suit, the Court is
satisfied, by affidavit or otherwise, that the defendant, with intent to
obstruct or delay the execution of any decree that may be passed against him,-
(a)
is about to dispose of the whole or any part
of his property, or
(b)
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, within a time to be fixed by it, either to furnish
security, in such sum as may be specified in the order, to produce and place at
the disposal of the Court, when required, the said property or the value of the
same, or such portion thereof as may be sufficient to satisfy the decree, or to
appear and show cause why he should not furnish security.
(2)
The plaintiff shall, unless the Court
otherwise directs, specify the property required to be attached and the
estimated value thereof.
(3)
The Court may also in the order direct the
conditional attachment of the whole or any portion of the property so
specified.
[(4)
If an order of attachment is made without complying with the provisions of
sub-rule (1) of this rule, such attachment shall be void.]
Rule 6. Attachment where cause not shown or
security not furnished.
(1)
Where the defendant fails to show cause why
he should not furnish security, or fails to furnish the security required,
within the time fixed by the Court, the Court may order that the property
specified, or such portion thereof as appears sufficient to satisfy any decree
which may be passed in the suit, be attached.
(2)
Where the defendant shows such cause or
furnishes the required security, and the property specified or any portion of
it has been attached, the Court shall order the attachment to be withdrawn, or
make such other order as it thinks fit.
Rule 7. Mode of making attachment.
Save as otherwise expressly
provided, the attachment shall be made in the manner provided for the attachment
of property in execution of a decree.
Rule [8.
Adjudication of claim to property attached before judgment.
Where any claim is preferred
to property attached before judgment, such claim shall be adjudicated upon in
the manner hereinbefore provided for the adjudication of claim to property
attached in execution of a decree for the payment of money.]
Rule 9. Removal of attachment when security
furnished or suit dismissed.
Where an order is made for
attachment before judgment, the Court shall order the attachment to be
withdrawn when the defendant furnishes the security required, together with
security for the cost of the attachment, or when the suit is dismissed.
Rule 10. Attachment before judgment not to
affect rights of strangers, nor bar decree-holder from applying for sale.
Attachment before judgment
shall not affect the rights, existing prior to the attachment, of persons not
parties to the suit, nor bar any person holding a decree against the defendant
from applying for the sale of the property under attachment in execution of
such decree.
Rule 11. Property attached before judgment
not to be re-attached in execution of decree.
Where property is under
attachment by virtue of the provisions of this order decree is subsequently
passed in favour of the plaintiff, it shall not be necessary upon an
application for execution of such decree to apply for a re-attachment of the
property.
Rule [11A. Provisions applicable to
attachment.
(1)
The provisions of this Code applicable to an
attachment made in execution of a decree shall, so far as may be, apply to an
attachment made before judgment which continues after the judgment by virtue of
the provisions of rule 11.
(2)
An attachment made before judgment in a suit
which is dismissed for default shall not become revived merely by reason of the
fact that the order for the dismissal of the suit for default has been set
aside and the suit has been restored.]
Rule 12. Agricultural produce not attachable
before judgment.
Nothing in this Order shall
be deemed to authorise the plaintiff to apply for the attachment of any
agricultural produce in the possession of an agriculturist, or to empower the
Court to order the attachment or production of such produce.
Rule [13.
Small Cause Court not to attach immovable property.
Nothing in this Order shall
be deemed to empower any Court of Small Causes to make an order for the
attachment of immovable property.]
ORDER XXXIX TEMPORARY INJUNCTIONS AND INTERLOCUTORY ORDERS
Temporary injunctions
Rule 1. Cases in which temporary injunction
may be granted.
Where in any suit it is
proved by affidavit or otherwise—
(a) that any property in dispute in a suit is in
danger of being wasted, damaged or alienated by any party to the suit, or
wrongfully sold in execution of a decree, or
(b) that the defendant threatens, or intends, to
remove or dispose of his property with a view to [defrauding]
his creditors,
[(c)
that the defendant threatens to dispossess, the plaintiff or otherwise cause
injury to the plaintiff in relation to any property in dispute in the suit,]
the Court may by order grant a temporary injunction to restrain such act, or
make such other order for the purpose of staying and preventing the wasting,
damaging, alienation, sale, removal or disposition of the property [or
dispossession of the plaintiff, or otherwise causing injury to the plaintiff in
relation to any property in dispute in the suit] as the Court thinks fit, until
the disposal of the suit or until further orders.
Rule 2. Injunction to restrain repetition or
continuance of breach.
(1)
In any suit for restraining the defendant
from committing a breach of contract or other injury of any kind, whether
compensation is claimed in the suit or not, the plaintiff may, at any time
after the commencement of the suit, and either before or after judgment, apply
to the Court for a temporary injunction to restrain the defendant from
committing the breach of contract or injury complained, of, or any breach of
contract or injury of a like kind arising out of the same contract or relating
to the same property or right.
(2)
The Court may by order grant such injunction,
on such terms as to the duration of the injunction, keeping an account, giving
security, or otherwise, as the Court thinks fit.
(3)
* * *
* *
Rule [2A.
Consequence of disobedience or breach of injunction.
(1)
In the case of disobedience of any injunction
granted or other order made under rule 1 or rule 2 or breach of any of the
terms on which the injunction was granted or the order made, the Court granting
the injunction or making the order, or any Court to which the suit or
proceeding is transferred, may order the property of the person guilty of such
disobedience or breach to be attached, and may also order such person to be
detained in the civil prison for a term not exceeding three months, unless in
the meantime the Court directs his release.
(2)
No attachment made under this rule shall
remain in force for more than one year, at the end of which time, if the
disobedience or breach continues, the property attached may be sold and out of
the proceeds, the Court may award such compensation as it thinks fit to the
injured party and shall pay the balance, if any, to the party entitled
thereto.]
Rule 3. Before granting injunction, Court to
direct notice to opposite party.
The Court shall in all
cases, except where it appears that the object of granting the injunction would
be defeated by the delay, before granting an injunction, direct notice of the
application for the same to be given to the opposite party:
[Provided
that, where it is proposed to grant an injunction without giving notice of the
application to the opposite party, the Court shall record the reasons for its
opinion that the object of granting the injunction would be defeated by delay,
and require the applicant—
(a)
to deliver to the opposite party, or to send
to him by registered post, immediately after the order granting the injunction
has been made, a copy of the application for injunction together with—
(i)
a copy of the affidavit filed in support of
the application;
(ii)
a copy of the plaint; and
(iii)
copies of documents on which the applicant,
relies, and
(b)
to file, on the day on which such injunction
is granted or on the day immediately following that day, an affidavit stating
that the copies aforesaid have been so delivered or sent.]
Rule [3A.
Court to dispose of application for injunction within thirty days.
Where an injunction has been
granted without giving notice to the opposite party, the Court shall make an
endeavour to finally dispose of the application within thirty days from the
date on which the injunction was granted; and where it is unable so to do, it
shall record its reasons for such inability.]
Rule 4. Order for injunction may be
discharged, varied or set aside.
Any order for an injunction
may be discharged, or varied, or set aside by the Court, on application made
thereto by any party dissatisfied with such order:
[Provided
that if in an application for temporary injunction or in any affidavit
supporting such application, a party has knowingly made a false or misleading
statement in relation to a material particular and the injunction was granted
without giving notice to the opposite party, the Court shall vacate the
injunction unless, for reasons to be recorded, it considers that it is not
necessary so to do in the interests of justice:
Provided further that where
an order for injunction has been passed after giving to a party an opportunity
of being heard, the order shall not be discharged, varied or set aside on the
application of that party except where such discharge, variation or setting
aside has been necessitated by a change in the circumstances, or unless the
Court is satisfied that the order has caused undue hardship to that party.]
Rule 5. Injection to corporation binding on
its officer.
An injunction directed to a
corporation is binding not only on the corporation itself, but also on all
members and officers of the corporation whose personal action it seeks to
restrain.
Interlocutory
orders
Rule 6. Power to order interim sale.
The Court may, on the
application of any party to a suit, order the sale, by any person named in such
order, and in such manner and on such terms as it thinks fit, of any movable
property, being the subject-matter of such suit, or attached before judgment in
such suit, which is subject to speedy and natural delay, or which for any other
just and sufficient cause, it may be desirable to have sold at once.
Rule 7. Detention, preservation, inspection,
etc., of subject-matter of suit.
(1)
The Court may, on the application of any
party to a suit, and on such terms as it thinks fit,
(a)
make an order for the detention, preservation
or inspection of any property which is the subject-matter of such suit, or as
to which any question may arise therein;
(b)
for all or any of the purposes aforesaid
authorise any person to enter upon or into any land or building in the
possession of any other party to such suit; and
(c)
for all or any of the purposes aforesaid
authorise any samples to be taken, or any observation to be made or experiment
to be tried, which may seem necessary or expendient for the purpose of
obtaining full information or evidence.
(2)
The provisions as to execution of process
shall apply, mutatis mutandis, to persons authorised to enter under this rule.
Rule 8. Application for such orders to be
after notice.
(1)
An application by the plaintiff for an order
under rule 6 or rule 7 may be made ***
at any time after institution of the suit.
(2)
An application by the defendant for a like
order may be made ***
at any time after appearance.
[(3)
Before making an order under rule 6 or rule 7 on an application made for the
purpose, the Court shall, except where it appears that the object of making
such order would be defeated by the delay, direct notice thereof to be given to
the opposite party.]
Rule 9. When party may be put in immediate
possession of land the subject-matter of suit.
Where land paying revenue to
Government, or a tenure liable to sale, is the subject-matter of a suit, if the
party in possesion of such land or tenure neglects to pay the Government
revenue, or the rent due to the proprietor of the tenure, as the case may be,
and such land or tenure is consequently ordered to be sold, any other party to
the suit claiming to have an interest in such land or tenure may, upon payment
of the revenue or rent due previously to the sale (and with or without security
at the discretion of the Court), be put in immediate possession of the land or
tenure;
and the Court in its decree
may award against the defaulter the amount so paid, with interest thereon at
such rate as the Court thinks fit, or may charge the amount so paid, with
interest thereon at such rate as the Court orders, in any adjustment of
accounts which may be directed in the decree passed in the suit.
Rule 10. Deposit of money, etc., in Court.
Where the subject-matter of
a suit is money or some other thing capable of delivery and any party thereto
admits that he holds such money or other thing as a trustee for another party,
or that it belongs or is due to another party, the Court may order the same to
be deposited in Court or delivered to such last-named party, with or without
security, subject to the further direction of the Court.
STATE
AMENDMENT
Uttar Pradesh.
Amendment of Order XXXIX: In
the First Schedule, in Order XXXIX-
(a)
in rule 2, in sub-rule (2) the following
proviso shall be inserted, namely:-
“provided that no such
injunction shall be granted —
(a)
where no perpetual injunction could be
granted in view of the provisions of section 38 and section 41 of the Specific
Relief Act, 1963, or
(b)
to stay the operation of an order for,
transfer, suspension, reduction in rank, compulsory retirement, dismissal,
removal or otherwise termination of service of, or taking charge from, any
employee including any employee of the Government, or
(c)
to say, any disciplinary proceeding pending
or intended or, the effect of any adverse entry, against any employee of the
Government, or
(d)
to affect the internal management or affairs
of, any educational institution including a University, or a society, or
(e)
to restrain any election, or
(f)
to restrain, any auction intended to be made
or, the effect of any auction made, by the Government, or
(g)
to stay the proceedings for the recovery of
any dues recoverable as land revenue unless adequate security is furnished, or
(h)
in any matter where a reference can be made
to the Chancellor of a University under any enactment for the time being in
force;
and any order for injunction
granted in contravention of these provisions shall be void.” ;
(b)
in rule 4-
(i)
after the words “by the court”, the words
“for reasons to be recorded, either on its own motion or” shall be inserted;
(ii)
at the end, the following proviso shall be
inserted, namely:
“Provided that if at any
stage of the suit it appears to the Court that the party in whose favour the
order of injunction exists is dilating the proceeding or is otherwise abusing
the process of Court, it shall set aside the order for injunction.”
[Vide Uttar Pradesh Act 57
of 1976, s. 13]
Uttar Pradesh.
Amendment of order XXXIX of
First Schedule: In the First Schedule to the said Code, in
Order XXXIX, in rule 2, in sub-rule (2), in the proviso, clause (d) shall be
omitted.
[Vide Uttar Pradesh Act 17
of 1991, s. 8]
Madhya
Pradesh
Amendment
Of Order Xxxix Of The First Schedule :-
In Order XXXIX of the First
Schedule to the Principal Act,-
(a)
in Rule 2, in sub-rule (2), the following
proviso shall be inserted, namely :-
Provided that no such
injunction shall be granted-
(a)
where no perpetual injunction could be
granted in view of the provisions of Section 38 and Section 41 of the Specific
Relief Act, 1963 (No. 47 of 1963); or
(b)
to stay the operation of an order for
transfer, suspension, reduction in rank, compulsory retirement, dismissal,
removal or otherwise termination of service of, or taking charge from, any
person appointed to public service and post in connection with the affairs of
the State including any employee of any company or corporation owned or
controlled by the State Government; or
(c)
to stay, any disciplinary proceeding pending
or intended or, the effect of any adverse entry against any person appointed to
public service and post in connection with the affairs of the State including
any employee of the company owned or controlled by the State Government; or
(d)
to restrain any election; or
(e)
to restrain any auction intended to be made
or, to restrain the effect of any auction made by the Government; or to stay
the proceedings for the recovery of any dues recoverable as land revenue unless
adequate security is furnished;
and any order for injunction
granted in contravention of these provisions shall be void.”
(b)
In Rule 4-
(i)
after the words “by the Court”, the words
“for reasons to be recorded, either on its own motion or” shall be inserted;
(ii)
at the end, the following proviso shall be inserted,
namely:-
“Provided also that if at
any stage of the suit it appears to the Court that the party in whose favour
the order of injunction exists is delaying the proceedings or is otherwise
abusing the process of Court, it shall set aside the order for injunction.”
[Vide Madhya Pradesh Act 29
of 1984]
ORDER XL APPOINTMENT OF RECEIVERS
Rule 1. Appointment of receivers
(1)
Where it appears to the Court to be just and
convenient, the Court may by order-
(a)
appoint a receiver of any property, whether
before or after decree;
(b)
remove any person from the possession or
custody of the property;
(c)
commit the same to the possession, custody or
management of the receiver; and
(d)
confer upon the receiver all such powers, as
to bringing and defending suits and for the realisation, 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 of those
powers as the Court thinks fit.
(2)
Nothing in this rule shall authorise the
Court to remove from the possession or custody of property any person whom any
party to the suit has not a present right so to remove.
Rule 2. Remuneration.
The Court may by general or
special order fix the amount to be paid as remuneration for the services of the
receiver.
Rule 3. Duties Every receiver so appointed
shall—
(a)
furnish such security (if any) as the Court
thinks fit, duly to account for what he shall receive in respect of the
property;
(b)
submit his accounts at such periods and in
such form as the Court directs;
(c)
pay the amount due from him as the Court
directs; and
(d)
be responsible for any loss occasioned to the
property by his wilful default or gross negligence.
Rule 4. Enforcement of receiver’s duties
Where a receiver—
(a)
fails to submit his accounts at such periods
and in such form as the Court directs, or
(b)
fails to pay amount due from him as the Court
directs, or
(c)
occasions loss to the property by his wilful
default or gross negligence, the Court may direct his property to be attached
and may sell such property, and may apply the proceeds to make good any amount
found to be due from him or any loss occasioned by him, and shall pay the
balance (if any) to the receiver.
Rule 5. When Collector may he appointed
receiver.
Where the property is land
paying revenue to the Government, or land of which the revenue has been
assigned or redeemed, and the Court considers that the interests of those
concerned will be promoted by the management of the Collector, the Court may,
with the consent of the Collector, appoint him to be receiver of such property.
ORDER XLI APPEALS FROM ORIGINAL DECREES
Rule 1. Form of appeal What to accompany memorandum.
(1)
Every appeal shall be preferred in the form
of a memorandum signed by the appellant or his pleader and presented to the
Court or to such officer as it appoints in this behalf. The memorandum shall be
accompanied by a copy of the [Judgment].
[Provided
that where two or more suits have been tried together and a common judgment has
been delivered therefor and two or more appeals are filed against any decree
covered by that judgment, whether by the same appellant or by different
appellants, the Appellate Court may dispense with the filing of more than one
copy of the judgment.]
(2)
Contents of memorandum The memorandum shall
set forth, concisely and under distinct heads, the grounds of objection to the
decree appealed from without any argument or narrative; and such grounds shall
be numbered consecutively.
[(3)
Where the appeal is against a decree for payment of money, the appellant shall,
within such time as the Appellate Court may allow, deposit the amount disputed
in the appeal or furnish such security in respect thereof as the Court may
think fit.]
Rule 2. Grounds which may be taken in appeal.
The appellant shall not,
except by leave of the Court, urge or be heard in support of any ground of
objection not set forth in the memorandum of appeal; but the Appellate Court,
in deciding the appeal, shall not be confined to the grounds of objections set
forth in the memorandum of appeal or taken by leave of the Court under this
rule:
Provided that the Court
shall not rest its decision on any other ground unless the party who may be
affected thereby has had a sufficient opportunity of contesting the case on
that ground.
Rule 3. Rejection or amendment of memorandum.
(1)
Where the memorandum of appeal is not drawn
up in the manner hereinbefore prescribed, it may be rejected, or be returned to
the appellant for the purpose of being amended within a time to be fixed by the
Court or be amended then and there.
(2)
Where the Court rejects any memorandum, it
shall record the reasons for such rejection.
(3)
Where a memorandum of appeal is amended, the
judge, or such officer as he appoints in this behalf, shall sign or initial the
amendment.
Rule [3A.
Application for condonation of delay.
(1)
When an appeal is presented after the expiry
of the period of limitation specified therefore, it shall be accompanied by an
application supported by affidavit setting forth the facts on which the
appellant relies to satisfy the Court that he had sufficient cause for not
preferring the appeal within such period.
(2)
If the Court sees no reason to reject the application
without the issue of a notice to the respondent, notice hereof shall be issued
to the respondent and the matter shall be finally decided by the Court before
it proceeds to deal with the appeal under rule 11 or rule 13, as the case may
be.
(3)
Where an application has been made under
sub-rule (1), the Court shall not make an order fact the stay of execution of
the decree against which the appeal is proposed to be filed so long as the
Court does not, after hearing under rule 11, decide to hear the appeal.]
Rule 4. One of several plaintiffs or
defendants may obtain reversal of whole decree where it proceeds on ground
common to all.
Where there are more
plaintiffs or more defendants than one in a suit, and the decree appealed from
proceeds on any ground common to all the plaintiffs or to all the defendants,
any one of the plaintiffs or of the defendants may appeal from the whole
decree, and thereupon the Appellate Court may reverse or vary the decree in
favour of all the plaintiffs or defendants, as the case may be.
Stay
of proceedings and of execution
Rule 5. Stay by Appellate Court.
(1)
An appeal shall not operate as a stay of
proceedings under a decree or order appealed from except so far as the
Appellate Court may order, nor shall execution of a decree be stayed by reason
only of an appeal having been preferred from the decree; but the Appellate
Court may for sufficient cause order stay of execution of such decree.
[Explanation
An order by the Appellate Court for the stay of execution of the decree shall be
effective from the date of the communication of such order to the Court of
first instance, but an affidavit sworn by the appellant, based on his personal
knowledge, stating that an order for the stay of execution of the decree has
been made by the Appellate Court shall, pending the receipt from the Appellate
Court of the order for the stay of execution or any order to the contrary, be
acted upon by the Court of first instance.]
(2)
Stay by Court which passed the decree Where
an application is made for stay of execution of an appealable decree before the
expiration of the time allowed for appealing therefrom, the Court which passed
the decree may on sufficient cause being shown order the execution to be
stayed.
(3)
No order for stay of execution shall be made
under sub-rule (1) or sub-rule (2) unless the Court making it is satisfied—
(a)
that substantial loss may result to the party
applying for stay of execution unless the order is made;
(b)
that the application has been made without
unreasonable delay; and
(c)
that security has been given by the applicant
for the due performance of such decree or order as may ultimately be binding
upon him.
(4)
[Subject
to the provision of sub-rule (3),] the Court may make an ex parte order for
stay of execution pending the hearing of the application.
[(5)
Notwithstanding anything contained in the foregoing sub-rules, where the
appellant fails to make the deposit or furnish the security specified in
sub-rule (3) of rule 1, the Court shall not make an order staying the execution
of the decree.]
Rule 6. Security in case of order for
execution of decree appealed from.
(1)
Where an order is made for the execution of a
decree from which an appeal is pending, the Court which passed the decree
shall, on sufficient cause being shown by the appellant, require security to be
taken for the restitution of any property which may be or has been taken in
execution of the decree or for the payment of the value of such property and
for the due performance of the decree or order of the Appellate Court, or the
Appellate Court may for like cause direct the Court which passed the decree to
take such security.
(2)
Where an order has been made for the sale of
immovable property in execution of a decree, and an appeal is pending from such
decree, the sale shall, on the application of the judgment-debtor to the Court
which made the order, be stayed on such terms as to giving security or
otherwise as the Court thinks fit until the appeal is disposed of.
Rule 7. [No
security to be required from the Government or a public officer in certain
cases.]
[* *
*]
Rule 8. Exercise of power in appeal from
order made in execution of decree.
The powers conferred by
rules 5 and 6 shall be exercisable where an appeal may be or has been preferred
not from the decree but from an order made in execution of such decree.
Procedure
on admission of appeal
Rule [9.
Registry of memorandum of appeal.
(1)
The Court from whose decree an appeal lies
shall entertain the memorandum of appeal and shall endorse thereon the date of
presentation and shall register the appeal in a book of appeal kept for that
purpose.
(2)
Such book shall be called the register of
appeal.]
Rule 10. Appellate Court may require
appellant to furnish security for costs.
(1)
The Appellate Court may in its discretion,
either before the respondent is called upon to appear and answer or afterwards
on the application of the respondent, demand from the appellant security for
the costs of the appeal, or of the original suit, or of both:
Where appellant resides out
of India Provided that the Court shall demand such security in all cases in
which the appellant is residing out of [India],
and is not possessed of any sufficient immovable property within [India]
other than the property (if any) to which the appeal relates.
(2)
Where such security is not furnished within
such time as the Court orders, the Court shall reject the appeal.
Rule 11. Power to dismiss appeal without
sending notice to Lower Court.
[(1)
The appellate Court after fixing a day for hearing the appellant or his pleader
and hearing him accordingly if he appears on that day may dismiss the appeal].
(2) If on the day fixed or arty other day to
which the hearing may be adjourned the appellant does not appear when the
appeal is called on for hearing, the Court may make an order that the appeal be
dismissed.
(3) The dismissal of an appeal under this rule
shall be notified to the Court from whose decree the appeal is preferred.
[(4)
Where an Appellate Court, not being the High Court, dismisses an appeal under
sub-rule (1), it shall deliver a judgment, recording in brief its grounds for
doing so, and a decree shall be drawn up in accordance with the judgment.]
Rule [11A.
Time within which hearing under rule 11 should be concluded.
Every appeal shall be hear
under rule 11 as expeditiously as possible and endeavour shall be made to
conclude such hearing within sixty days from the date on which the memorandum
of appeal is filed.]
Rule 12. Day for hearing appeal.
(1)
Unless the Appellate Court dismisses the
appeal under rule 11, it shall fix a day for hearing the appeal.
[(2)
Such day shall be fixed with reference to the current business of the Court.]
Rule 13. [Appellate
Court to give notice to Court whose decree appealed from.]
[* * *]
Rule 14. Publication and service of notice of
day for hearing appeal.
(1)
Notice of the day fixed under rule 12 shall
be affixed in the Appellate Court-house, and a like notice shall be sent by the
Appellate Court to the Court from whose decree the appeal is preferred, and
shall be served on the respondent or on his pleader in the Appellate Court in
the manner provided for the service on a defendant of a summons to appear and
answer, and all the provisions applicable to such summons, and to proceedings
with reference to the service thereof, shall apply to the service of such
notice.
(2)
Appellate Court may itself cause notice to be
served Instead of sending the notice to the Court from whose decree the appeal
is preferred, the Appellate Court may itself cause the notice to be served on
the respondent or his pleader under the provisions above referred to.
[(3)
The notice to be served on the respondent shall be accompanied by a copy of the
memorandum of appeal.
(4) Notwithstanding anything to the contrary
contained in sub-rule (1), it shall not be necessary to serve notice of any
proceeding incidental to an appeal on any respondent other than a person
impleaded for the first time in the Appellate Court, unless he has appeared and
filed an address for the service in the Court of first instance or has appeared
in the appeal.
(5) Nothing in sub-rule (4) shall bar the
respondent referred to in the appeal from defending it.]
Rule 15. [Contents
of notice.]
[* * *]
Procedure
on hearing
Rule 16. Right to begin.
(1)
On the day fixed, or on any other day to
which the hearing may be adjourned, the appellant shall be heard in support of
the appeal.
(2)
The Court shall then, if it does not dismiss
the appeal at once, hear the respondent against the appeal, and in such case
the appellant shall be entitled to reply.
Rule 17. Dismissal of appeal for appellants’
default.
(1)
Where on the day fixed, or on any other day
to which the hearing may be adjourned, the appellant does not appear when the
appeal is called on for hearing, the Court may make an order that the appeal be
dismissed.
[Explanation
Nothing in this sub-rule shall be construed as empowering the Court to dismiss
the appeal on the merits.]
(2)
Hearing appeal ex parte Where the appellant
appears and the respondent does not appear, the appeal shall be heard ex parte.
Rule 18. [Dismissal
of appeal where notice not served in consequence of appellant’s failure to
deposit cost.]
[* * *]
Rule 19. Re-admission of appeal dismissed for
default.
Where an appeal is dismissed
under rule 11, sub-rule (2) or rule 17 [***]
the appellant may apply to the Appellate Court for the re-admission of the
appeal; and, where it is proved that he was prevented by any sufficient cause
from appearing when the appeal was, called on for hearing or from depositing
the sum so required, the Court shall re-admit the appeal on such terms as to
costs or otherwise as it thinks fit.
Rule 20. Power to adjourn hearing and direct
persons appearing interested to be made respondents.
[(1)]
Where it appears to the Court at the hearing that any person who was a party to
the suit in the Court from whose decree the appeal is preferred, but who has
not been made a party to the appeal, is interested in the result of the appeal,
the Court may adjourn the hearing to a future day to be fixed by the Court and
direct that such person be made a respondent.
[(2)
No respondent shall be added under this rule, after the expiry of the period of
limitation for appeal, unless the Court, for reasons to be recorded, allows
that to be done, on such terms as to costs as it thinks fit.]
Rule 21. Re-hearing on application of
respondent against whom ex parte decree made.
Where an appeal is heard ex
parte and judgment is pronounced against the respondent, he may apply to the
Appellate Court to re-hear the appeal; and, if he satisfies the Court that the
notice was not duly served or that he was prevented by sufficient cause from
appearing when the appeal was called on for hearing, the Court shall re-hear the
appeal on such terms as to costs or otherwise as it thinks fit to impose upon
him.
Rule 22. Upon hearing respondent may object
to decree as if he had preferred separate appeal.
(1)
Any respondent, though he may not have
appealed from any part of the decree, may not only support the decree [but
may also state that the finding against him in the Court below in respect of
any issue ought to have been in his favour; and may also take any
cross-objection] to the decree which he could have taken by way of appeal provided
he has filed such objection in the Appellate Court within one month from the
date of service on him or his pleader of notice of the day fixed for hearing
the appeal, or within such further time as the Appellate Court may see fit to
allow.
[Explanation.-
A respondent aggrieved by a finding of the Court in the judgment on which the
decree appealed against is based may, under this rule, file cross-objection in
respect of the decree in so far as it is based on that finding, notwithstanding
that by reason of the decision of the Court on any other finding which is
sufficient for the decision of the suit, the decree, is, wholly or in part, in
favour of that respondent.]
(2)
Form of objection and provisions applicable
thereto Such cross-objection shall be in the form of a memorandum, and the
provisions of rule 1, so far as they relate to the form and contents of the
memorandum of appeal, shall apply thereto.
(3)
* *
* * *
(4)
Where, in any case in which any respondent
has under this rule filed a memorandum of objection, the original appeal is
withdrawn or is dismissed for default, the objection so filed may nevertheless
be heard and determined after such notice to the other parties as the Court
thinks fit.
(5)
The provisions relating to appeals by
indigent persons shall, so far as they can be made applicable, apply to an
objection under this rule.
Rule 23. Remand of case by Appellate Court.
Where the Court from whose
decree an appeal is preferred has disposed of the suit upon a preliminary point
and the decree is reversed in appeal, the Appellate Court may, if it thinks
fit, by order remand the case, and may further direct what issue or issues
shall be tried in the case so remanded, and shall send a copy of its judgment
and order to the Court from whose decree the appeal is preferred, which
directions to re-admit the suit under its original number in the register of
civil suits, and proceed to determine the suit; and the evidence (if any)
recorded during the original trial shall, subject to all just exceptions, be
evidence during the trial after remand.
Rule [23A.
Remand in other cases.
Where the Court from whose
decree an appeal is preferred has disposed of the case otherwise than on a
preliminary point, and the decree is reversed in appeal and a re-trial is
considered necessary, the Appellate Court shall have the same powers as it has
under rule 23.
Rule 24. Where evidence on record sufficient
Appellate Court may determine case finally.
Where the evidence upon the
record is sufficient to enable the Appellate Court to pronounce judgement, the
Appellate Court may, after resettling the issues, if necessary, finally
determine the suit, notwithstanding that the judgment of the Court from whose
decree the appeal is preferred has proceeded wholly upon some ground other than
that on which the Appellate Court proceeds.
Rule 25. Where Appellate Court may frame
issues and refer them for trial to Court whose decree appealed from.
Where the Court from whose
decree the appeal is preferred has omitted to frame or try any issue, or to determine
any question of fact, which appears to the Appellate Court essential to the
right decision of the suit upon the merits, the Appellate Court may, if
necessary, frame issues, and refer the same for trial to the Court from whose
decree the appeal is preferred, and in such case shall direct such Court to
take the additional evidence required;
and such Court shall proceed
to try such issues, and shall return the evidence to the Appellate Court
together with its findings thereon and the reasons therefor [within
such time as may be fixed by the Appellate Court or extended by it from time to
time].
Rule 26. Findings and evidence to be put on
record. Objections to findings.
(1)
Such evidence and findings shall form part of
the record in the suit; and either party may, within a time to be fixed by the
Appellate Court, present a memorandum of objections to any finding.
(2)
Determination of appeal After the expiration
of the period so fixed for presenting such memorandum the Appellate Court shall
proceed to determine the appeal.
Rule [26A.
Order of remand to mention date of next hearing.
Where the Appellate Court
remands a case under rule 23 or rule 23A, or frames issues and refers them for
trial under rule 25, it shall fix a date for the appearance of the parties
before the Court from whose decree the appeal was preferred for the purpose of
receiving the directions of that Court as to further proceedings in the suit.]
Rule 27. Production of additional evidence in
Appellate Court.
(1)
The parties to an appeal shall not be
entitled to produce additional evidence, whether oral or documentary, in the
Appellate Court. But if —
(a)
the Court from whose decree the appeal is
preferred has refused to admit evidence which ought to have been admitted, or
[(aa)
the party seeking to produce additional evidence, establishes that
notwithstanding the exercise of due diligence, such evidence was not within his
knowledge or could not, after the exercise of due diligence, be produced by him
at the time when the decree appealed against was passed, or]
(b)
the Appellate Court requires any document to
be produced or any witness to be examined to enable it to pronounce judgment,
or for any other substantial cause, the Appellate Court may allow such evidence
or document to be produced, or witness to be examined.
(2)
Wherever additional evidence is allowed to be
produced by an Appellate Court, the Court shall record the reason for its
admission.
Rule 28. Mode of taking additional evidence.
Wherever additional evidence
is allowed to be produced, the Appellate Court may either take such evidence,
or direct the Court from whose decree the appeal is preferred, or any other
subordinate Court, to take such evidence and to send it when taken to the
Appellate Court.
Rule 29. Points to be defined and recorded.
Where additional evidence is
directed or allowed to be taken, the Appellate Court shall specify the points
to which the evidence is to be confined, and record on its proceedings the
points so specified.
Judgment
in appeal
Rule 30. Judgment when and where pronounced.
[(1)]
The Appellate Court, after hearing the parties or their pleaders and referring
to any part of the proceedings, whether on appeal or in the Court from whose
decree the appeal is preferred, to which reference may be considered necessary,
shall pronounce judgment in open Court, either at once or on some future day of
which notice shall be given to the parties or their pleaders.
[(2)
Where a written judgment is to be pronounced, it shall be sufficient if the
points for determination, the decision thereon and the final order passed in
the appeal are read out and it shall not be necessary for the Court to read out
the whole judgment, but a copy of the whole judgment shall be made available
for the perusal of the parties or their pleaders immediately after the judgment
is pronounced.]
Rule 31. Contents, date and signature of
judgment.
The judgment of the
Appellate Court shall be in writing and shall state—
(a)
the points for determination;
(b)
the decision thereon;
(c)
the reasons for the decision; and
(d)
where the decree appealed from is reversed or
varied, the relief to which the appellant is entitled, and shall at the time
that it is pronounced be signed and dated by the Judge or by the Judges
concurring therein.
Rule 32. What judgment may direct.
The judgment may be for
confirming, varying or reversing the decree from which the appeal is preferred,
or, if the parties to the appeal agree as to the form which the decree in
appeal shall take, or as to the order to be made in appeal, the Appellate Court
may pass a decree or make an order accordingly.
Rule 33. Power of Court of Appeal.
The Appellate Court shall
have power to pass any decree and make any order which ought to have been
passed or made and to pass or make such further or other decree or order as the
case may require, and this power may be exercised by the Court notwithstanding
that the appeal is as to part only of the decree and may be exercised in favour
of all or any of the respondents or parties, although such respondents or
parties may not have filed any appeal or objection 1[and may, where there have
been decrees in cross-suits or where two or more decrees are passed in one
suit, be exercised in respect of all or any of the decrees, although an appeal
may not have been filed against such decrees]:
[Provided
that the Appellate Court shall not make any order under section 35A in
pursuance of any objection on which the Court from whose decree the appeal is
preferred has omitted or refused to make such order.]
Illustration
A claims a sum of money as
due to him from X or Y, and in a suit against both obtains a decree against X.
X, appeals and A and Y are respondents. The Appellate Court decides in favour
of X. It has power to pass a decree against Y.
Rule 34. Dissent to be recorded.
Where the Appeal is heard by
more judges than one, any judge dissenting from the judgment of the Court shall
state in writing the decision or order which he thinks should be passed on the
appeal, and he may state his reasons for the same.
Decree
in appeal
Rule [35.
Date and contents of decree.
(1)
The decree of the Appellate Court shall bear
date the day on which the judgment was pronounced.
(2)
The decree shall contain the number of the
appeal, the names and descriptions of the appellant and respondent, and a clear
specification of the relief granted or other adjudication made.
(3)
The decree shall also state the amount of costs
incurred in the appeal, and by whom, or out of what property, and in what
proportions such costs and the costs in the suit are to be paid.
(4)
The decree shall be signed and dated by the
Judge or Judges who passed it:
Judge
dissenting from judgment need not sign decree
Provided that where there
are more Judges than one and there is a difference of opinion among them, it
shall not be necessary for any Judge dissenting from the judgment of the Court
to sign the decree.
Rule 36. Copies of judgment and decree to be
furnished to parties.
Certified copies of the
judgment and decree in appeal shall be furnished to the parties on application
to the Appellate Court and at their expense.
Rule 37. Certified copy of decree to be sent
to Court whose decree appealed from.
A copy of the judgment and
of the decree, certified by the Appellate Court or such officer as it appoints
in this behalf, shall be sent to the Court which passed the decree appealed
from and shall be filed with the original proceedings in the suit, and an entry
of the judgment of the Appellate Court shall be made in the register of civil
suits.
ORDER XLII APPEALS FROM APPELLATE DECREES
Rule 1. Procedure.
The rules of Order XLI shall
apply, so far as may be, to appeals from appellate decrees.
Rule [2.
Power of Court to direct that the appeal be heard on the question formulated by
it.
At the time of making an
order under rule 11 of Order XLI for the hearing of a second appeal, the Court
shall formulate the substantial question of law as required by section 100, and
in doing so, the Court may direct that the second appeal be heard on the
question so formulated and it shall not be open to the appellant to urge any
other ground in the appeal without the leave of the Court, given in accordance
with the provision of section 100.
Rule 3. Application of rule 14 of Order XLI.
Reference in sub-rule (4) of
rule 14 of Order XLI to the Court of first instance shall, in the case of an
appeal from an appellate decree or order, be construed as a reference to the
Court to which the appeal was preferred from the original decree or order.]
ORDER XLIII APPEALS FROM ORDERS
Rule 1. Appeal from orders.
An appeal shall lie from the
following orders under the provisions of section 104, namely:-
(a)
an order under rule 10 of Order VII returning
a plaint to be presented to the proper Court [except
where the procedure specified in rule 10A of Order VII has been followed];
* *
* * *
(c) an
order under rule 9 of order IX rejecting an application (in a case open to
appeal) for an order to set aside the dismissal of a suit;
(d) an
order under rule 13 of Order IX rejecting an application (in a case open to
appeal) for an order to set aside a decree passed ex parte;
* *
* * *
(f) an
order under rule 21 of Order XI;
* *
* * *
(i) an order under rule 34 of Order XXI on an
objection to the draft of a document or of an endorsement;
(j) an order under rule 72 or rule 92 of Order
XXI setting aside or refusing to set aside a sale;
[ja)
an order rejecting an application made under sub-rule (1) of rule 106 of Order
XXI, provided that an order on the original application, that is to say, the
application referred to in sub-rule (1) of rule 105 of that Order is
appealable;]
(k) an order under rule 9 of Order XXII refusing
to set aside the abatement or dismissal of a suit;
(l) an order under rule 10 of Order XXII giving
or refusing to give leave;
* *
* * *
(n) an order under rule 2 of Order XXV rejecting
an application (in a case open to appeal) for an order to set aside the dismissal
of a suit;
[(na)
an order under rule 5 or rule 7 of Order XXXIII rejecting an application for
permission to sue as an indigent person;]
* *
* * *
(p) orders in interpleader-suits under rule 3,
rule 4 or rule 6 of Order XXXV;
(q) an order under rule 2, rule 3 or rule 6 of
order (XXVIII);
(r) an order under rule 1, rule 2 [rule
2A], rule 4 or rule 10 of Order XXXIX;
(s) an order under rule 1, or rule 4 of Order XL;
(t) an order of refusal under rule 19 of Order
XLI to re-admit, or under rule 21 of Order XLI to re-hear, an appeal;
(u) an order under rule 23 [or
rule 23A] of Order XLI remanding a case, where an appeal would lie from the
decree of the Appellate Court;
* *
* * *
(w)
an order under rule 4 of Order XLVII granting an application for review.
Rule [1A.
Right to challenge non-appealable orders in appeal against decrees.
(1)
Where any order is made under this Code
against a party and thereupon any judgment is pronounced against such party and
a decree is drawn up, such party may, in an appeal against the decree, contend
that such order should not have been made and the judgment should not have been
pronounced.
(2)
In an appeal against a decree passed in a
suit after recording a compromise or refusing to record a compromise, it shall
be open to the appellant to contest the decree on the ground that the
compromise should, or should not, have been recorded.]
Rule 2. Procedure.
The rules of Order XLI shall
apply, so far as may be, to appeals from orders.
ORDER XLIV [776][APPEALS BY INDIGENT PERSONS]
Rule 1. Who may appeal [as
an indigent person].
[(1)]
Any person entitled to prefer an appeal, who is unable to pay the fee required
for the memorandum of appeal, may present an application accompanied by a
memorandum of appeal, and may be allowed to appeal as an 5[indigent person],
subject, in all matters, including the presentation of such application, to the
provisions relating to suits by [indigent
persons], in so far as those provisions are applicable.
* *
* * *
* *
* * *
Rule [2.
Grant of time for payment of court-fee.
Where an application is
rejected under rule 1, the Court may, while rejecting the application, allow
the applicant to pay the requisite Court-fee, within such time as may be fixed
by the Court or extended by it from time to time; and upon such payment, the
memorandum of appeal in respect of which such fee is payable shall have the
same force and effect as if such fee had been paid in the first instance.
Rule 3. Inquiry as to whether applicant is an
indigent person.
(1)
Where an applicant, referred to in rule 1,
was allowed to sue or appeal as an indigent person in the Court from whose
decree the appeal is preferred, no further inquiry in respect of the question
whether or not he is an indigent person shall be necessary if the applicant has
made an affidavit stating that he has not ceased to be an indigent person since
the date of the decree appealed from; but if the Government Pleader or the
respondent disputes the truth of the statement made in such affidavit, an inquiry
into the question aforesaid shall be held by the Appellate Court, or, under the
orders of the Appellate Court, by an officer of that Court.
(2)
Where the applicant, referred to in rule 11,
is alleged to have become an indigent person since the date of the decree
appealed from, the inquiry into the question whether or not he is an indigent
person shall be made by the Appellate Court or, under the orders of the
Appellate Court, by an officer of that Court unless the Appellate Court
considers it necessary in the circumstances of the case that the inquiry should
be held by the Court from whose decision the appeal is preferred.]
ORDER XLV APPEALS TO THE [783][SUPREME COURT]
Rule 1. “Decree” defined.
In this Order, unless there
is something repugnant in the subject or context, the expression “decree” shall
include a final order.
Rule 2. Application to Court whose decree
complained of.
[(1)]
Whoever desires to appeal [the
Supreme Court] shall apply by petition to the Court whose decree is complained
of.
[(2)
Every petition under sub-rule (1) shall be heard as expeditiously as possible
and endeavour shall be made to conclude the disposal of the petition within
sixty days from the date on which the petition is presented to the Court under
sub-rule (1).]
Rule 3. Certificate as to value or fitness.
[(1)
Every petition shall state the grounds of appeal and pray for a certificate—
(i)
that the case involves a substantial question
of law of general importance, and
(ii)
that in the opinion of the Court the said
question needs to be decided by the Supreme Court.]
(2) Upon receipt of such petition, the Court
shall direct notice to be served on the opposite party to show cause why the
said certificate should not be granted.
Rule 4. [Consolidation
of suits.]
[* * *]
Rule 5. [Remission
of dispute to Court of first instance.]
[* * *]
Rule 6. Effect of refusal of certificate.
Where such certificate is
refused, the petition shall be dismissed.
Rule 7. Security and deposit required on
grant of certificate.
(1)
Where the certificate is granted, the
applicant shall, within [ninety
days or such further period, not exceeding sixty days, as the Court may upon
cause shown allow;] from the date of the decree complained of, or within six
weeks from the date of the grant of the certificate whichever is the later
date,
(a)
furnish security [in
cash or in Government securities] for the costs of the respondent, and
(b)
deposit the amount required to defray the
expense of translating, transcribing indexing [printing,]
and transmitting to [the
Supreme Court] a correct copy of the whole record of the suit, except—
(1)
formal documents directed to be excluded by
any [Rule
of the Supreme Court] in force for the time being;
(2)
papers which the parties agree to exclude;
(3)
accounts, or portions of accounts, which the
officer empowered by the Court for that purpose considers unnecessary, and
which the parties have not specifically asked to be included; and
(4)
such other documents as the High Court may
direct to be excluded:
[Provided
that the Court at the time of granting the certificate may, after hearing any
opposite party who appears, order on the ground of special hardship that some
other form of security may be furnished:
Provided further, that no
adjournment shall be granted to an opposite party to contest the nature of such
security.]
(5)
* *
* * *
Rule 8. Admission of appeal and procedure
thereon.
Where such security has been
furnished and deposit made to the satisfaction of the Court, the court shall—
(a)
declare the appeal admitted,
(b)
give notice thereof to the respondent,
(c)
transmit to [the
Supreme Court] under the seal of the Court a correct copy of the said record,
except as aforesaid, and
(d)
give to either party one or more
authenticated copies of any of the papers in the suit on his applying therefore
and paying the reasonable expenses incurred in preparing them.
Rule 9. Revocation of acceptance of security.
At any time before the
admission of the appeal the Court may, upon cause shown, revoke the acceptance
of any such security, and make further directions thereon.
Rule [9A.
Power to dispense with notices in case of deceased parties.
Nothing in these rules
requiring any notice to be served on or given to an opposite party or
respondent shall be deemed to require any notice to be served on or given to
the legal representative of any deceased opposite party or deceased respondent
in a case, where such opposite party or respondent did not appear either at the
hearing in the Court whose decree is complained of or at any proceedings
subsequent to the decree of that Court:
Provided that notices under
sub-rule (2) of rule 3 and under rule 8 shall be given by affixing the same in
some conspicuous place in the court-house of the Judge of the district in which
the suit was originally brought, and by publication in such newspapers as the
Court may direct.]
Rule 10. Power to order further security or
payment.
Where at any time after the
admission of an appeal but before the transmission of the copy of the record,
except as aforesaid, to [the
Supreme Court], such security appears inadequate, or further payment is
required for the purpose of translating, transcribing, printing, indexing or
transmitting the copy of the record, except as aforesaid, the Court may order
the appellant to furnish, within a time to be fixed by the Court, other and
sufficient security, or to make, within like time, the required payment.
Rule 11. Effect of failure to comply with
order.
Where the appellant fails to
comply with such order, the proceedings shall be stayed, and the appeal shall
not proceed without an order in this behalf of, [the
Supreme Court], and in the meantime execution of the decree appealed from shall
not be stayed.
Rule 12. Refund of balance deposit.
When the copy of the record,
except as aforesaid, has been transmitted to [the
Supreme Court], the appellant may obtain a refund of the balance (if any) of
the amount which he has deposited under rule 7.
Rule 13. Powers of Court pending appeal.
(1)
Notwithstanding the grant of a certificate
for the admission of any appeal, the decree appealed from shall be
unconditionally executed, unless the Court otherwise directs.
(2)
The Court may, if it thinks fit, on special
cause shown by any party interested in the suit, or otherwise appearing to the
Court,
(a)
impound any movable property in dispute or
any part thereof, or
(b)
allow the decree appealed from to be
executed, taking such security from the respondent as the Court thinks fit for
the due performance of any order which [the
Supreme Court] may make on the appeal, or
(c)
stay the execution of the decree appealed
from, taking such security from the appellant as the Court thinks fit for the
due performance of the decree appealed from, or of [any
decree or order] which [the
Supreme Court] may make on the appeal, or
(d)
place any party seeking the assistance of the
Court under such conditions or give such other direction respecting the subject-matter
of the appeal, as it thinks fit, by the appointment of a receiver or otherwise.
Rule 14. Increase of security found
inadequate.
(1)
Where at any time during the pendency of the
appeal the security furnished by either party appears inadequate, the Court
may, on the application of the other party, require further security.
(2)
In default of such further security being
furnished as required by the Court,
(a)
if the original security was furnished by the
appellant, the Court may, on the application of the respondent, execute the
decree, appealed from as if the appellant had furnished no such security:
(b)
if the original security was furnished by the
respondent, the Court shall, so far as may be practicable, stay the further
execution of the decree, and restore the parties to the position in which they
respectively were when the security which appears inadequate was furnished, or
give such direction respecting the subject-matter of the appeal as it thinks
fit.
Rule 15. Procedure to enforce orders of the
Supreme Court.
(1)
Whoever desires to obtain execution of [any
decree or order] of [the
Supreme Court] shall apply by petition, accompanied by a certified copy of the
decree passed or order made in appeal and sought to be executed, to the Court
from which the appeal to [the
Supreme Court] was preferred.
(2)
Such Court shall transmit the [decree
or order] of [the
Supreme Court] to the Court which passed the first decree appealed from, or to
such other Court as [the
Supreme Court] by such [decree
or order] may direct and shall (upon the application of either party) give such
directions as may be required for the execution of the same; and the Court to
which the said [decree
or order] is so transmitted shall execute it accordingly, in the manner and
according to the provisions applicable to the execution of its original
decrees.
(3)
* *
* * *
[(4)
[Unless
the Supreme Court otherwise directs, no decree or order of that Court] shall be
inoperative on the ground that no notice has been served on or given to the
legal representative of any deceased opposite party or deceased respondent in a
case, where such opposite party or respondent did not appear either at the
hearing in the Court whose decree was complained of or at any proceedings
subsequent to the decree of that Court, but such order shall have the same
force and effect as if it had been made before the death took place.]
Rule 16. Appeal from order relating to
execution.
The orders made by the Court
which executes the [decree
or order] of [the
Supreme Court], relating to such execution, shall be appealable in the same
manner and subject to the same rules as the orders of such Court relating to
the execution of its own decrees.
Rule 17. Appeals to Federal Court.
[***]
STATE
AMENDMENT
Uttar Pradesh
Amendment of Order XLV. In
the First Schedule, in Order XLV, in rule 2, after sub- rule (2), the following
sub-rule shall be inserted, namely:
“(3) Notwithstanding anything contained in
sub-rule (1), whoever desires to appeal to the Supreme Court, may apply orally
to the Court whose decree is to be complained of, immediately before or
after the pronouncement of
the judgment by the Court, for a certificate contemplated in sub-rule (1) of
rule 3, and the Court may either grantor refuse the certificate, or direct the
applicant to file a petition as required by sub-rule (1) ;
Provided that if an oral
application is entertained and rejected, no written petition under sub-rule (1)
shall lie.”
[Vide Uttar Pradesh Act 56
of 1957, s. 14]
ORDER XLVI REFERENCE
Rule 1. Reference of question to High Court.
Where, before or on the
hearing of a suit or an appeal in which the decree is not subject to appeal, or
where, in the execution of any such decree, any question of law or usage having
the force of law arises, on which the Court trying the suit or appeal, or
executing the decree, entertains reasonable doubt, the Court may, either of its
own motion or on the application of any of the parties, draw up a statement of
the facts of the case and the point on which doubt is entertained, and refer
such statement with its own opinion on the point for the decision of the High
Court.
Rule 2. Court may pass decree contingent upon
decision of High Court.
The Court may either stay
the proceedings or proceed in the case notwithstanding such reference, and may
pass a decree or make an order contingent upon the decision of the High Court
on the point referred:
But no decree or order shall
be executed in any case in which such reference is made until the receipt of a
copy of the judgment of the High Court upon the reference.
Rule 3. Judgment of High Court to be
transmitted and case disposed of accordingly.
The High Court, after
hearing the parties if they appear and desire to be heard, shall decide the
point so referred, and shall transmit a copy of its judgment, under the
signature of the Registrar, to the Court by which the reference was made; and
such Court shall, on the receipt thereof, proceed to dispose of the case in
conformity with the decision of the High Court.
Rule 4. Cost of reference to High Court.
The costs (if any)
consequent on a reference for the decision of the High Court shall be costs in
the case.
Rule [4A.
Reference to High Court under proviso to section 113.
The provisions of rules 2, 3
and 4 shall apply to any reference by the Court under the proviso to section
113 as they apply to a reference under rule 1; and]
Rule 5. Power to alter, etc., decree of Court
making reference.
Where a case is referred to
the High Court under rule 5 [or under the proviso to section 113], the High
Court may return the case for amendment, and may alter, cancel or set aside any
decree or order which the Court making the reference has passed or made in the
case out of which the reference arose, and make such order as it thinks fit.
Rule 6. Power to refer to High Court
questions as to jurisdiction in small causes.
(1)
Where at any time before judgment a Court in
which a suit has been instituted doubts whether the suit is cognizable by a
Court of Small Causes or is not so cognizable, it may submit the record to the
High Court with a statement of its reasons for the doubt as to the nature of
the suit.
(2)
On receiving the record and statement, the
High Court may order the Court either to proceed with the suit or to return the
plaint for presentation to such other Court as it may in its order declare to
be competent to take cognizance of the suit.
Rule 7. Power to District Court to submit for
revision proceeding had under mistake as to jurisdiction in small causes.
(1)
Where it appears to a District Court that a
Court subordinate thereto has, by reason of erroneously holding a suit to be cognizable
by a Court of Small Causes or not to be so cognizable, failed to exercise a
jurisdiction vested in it by law, or exercised a jurisdiction not so vested,
the District Court may, and if required by a party shall, submit the record to
the High Court with a statement of its reasons for considering the opinion of
the Subordinate Court with respect to the nature of the suit to be erroneous.
(2)
On receiving the record and statement the
High Court may make such order in the case as it thinks fit.
(3)
With respect to any proceedings subsequent to
decree in any case submitted to the High Court under this rule, the High Court
may make such order as in the circumstance appears to it to be just and proper.
(4)
A Court subordinate to a District Court shall
comply with any requisition which the District Court may make for any record or
information for the purposes of this rule.
ORDER XLVII REVIEW
Rule 1. Application for review of judgment.
(1)
Any person considering himself aggrieved-
(a)
by a decree or order from which an appeal is
allowed, but from which no appeal has been preferred,
(b)
by a decree or order from which no appeal is
allowed, or
(c)
by a decision on a reference from a Court of
Small Causes, and who, from the discovery of new and important matter or
evidence which, after the exercise of due diligence was not within his
knowledge or could not be produced by him at the time when the decree was
passed or order made, or on account of some mistake or error apparent on the
face of the record or for any other sufficient reason, desires to obtain a
review of the decree passed or order made against him, may apply for a review
of judgment to the Court which passed the decree or made the order.
(2)
A party who is not appealing from a decree or
order may apply for a review of judgment notwithstanding the pendency of an
appeal by some other party except where the ground of such appeal is common to
the applicant and the appellant, or when, being respondent, he can present to
the Appellate Court the case on which he applied for the review.
[Explanation
The fact that the decision on a question of law on which the judgment of the
Court is based has been reversed or modified by the subsequent decision of a
superior Court in any other case, shall not be a ground for the review of such
judgment.]
Rule 2. [To
whom applications for review may be made.]
[* * *]
Rule 3. Form of applications for review.
The provisions as to the
form of preferring appeals shall apply, mutatis mutandis, to applications for
review.
Rule 4. Application where rejected.
(1)
Where it appears to the Court that there is
not sufficient ground for a review, it shall reject the application.
(2)
Application where granted Where the Court is
of opinion that the application for review should be granted, it shall grant
the same:
Provided that—
(a)
no such application shall be granted without
previous notice to the opposite party, to enable him to appear and be heard in
support of the decree or order, a review of which is applied for; and
(b)
no such application shall be granted on the
ground of discovery of new matter or evidence which the applicant alleges was
not within his knowledge, or could not be adduced by him when the decree or
order was passed or made, without strict proof of such allegation.
Rule 5. Application for review in Court consisting
of two or more Judges.
Where the Judge or Judges,
or any one of the Judges, who passed the decree or made the order a review of
which is applied for, continues or continued attached to the Court at the time
when the application for a review is presented, and is not or not precluded by
absence or other cause for a period of six months next after the application
from considering the decree or order to which the application refers, such
Judge or Judges or any of them shall hear the application, and no other Judge
or Judges of the Court shall hear the same.
Rule 6. Application where rejected.
(1)
Where the application for a review is heard
by more than one Judge and the Court is equally divided, the application shall
be rejected.
(2)
Where there is a majority, the decision shall
be according to the opinion of the majority.
Rule 7. Order of rejection not appealable.
Objections to order granting application.
[(1)
An order of the Court rejecting the application shall not be appealable; but an
order granting an application may be objected to at once by an appeal from the
order granting the application or in an appeal from the decree or order finally
passed or made in the suit.]
(2) Where the application has been rejected in
consequence of the failure of the applicant to appear, he may apply for an
order to have the rejected application restored to the file, and, where it is
proved to the satisfaction of the Court that he was prevented by any sufficient
cause from appearing which such application was called on for hearing, the
Court shall order it to be restored to the file upon such terms as to costs or
otherwise as it thinks fit, and shall appoint a day for hearing the same.
(3) No order shall be made under sub-rule (2)
unless notice of the application has been served on the opposite party.
Rule 8. Registry of application granted, and
order for re-hearings.
When an application for
review is granted, a note thereof shall be made in the register and the Court
may at once re-hear the case or make such order in regard to the re-hearing as
it thinks fit.
Rule 9. Bar of certain application.
No application to review an
order made on an application for a review or a decree or order passed or made
on a review shall be entertained.
ORDER XLVIII MISCELLANEOUS
Rule 1. Process to be served at expense of party issuing.
(1)
Every process issued under this Code shall be
served at the expense of the party on whose behalf it is issued, unless the
Court-otherwise directs.
(2)
Costs of service The court-fee chargeable for
such service shall be paid within a time to be fixed-before the process is
issued.
Rule 2. Orders and notices how served.
All orders, notices and
other documents required by this Code to be given to or served on any person
shall be served in the manner provided for the service of summons.
Rule 3. Use of forms in appendices.
The Forms given in the
appendices, with such variation as the circumstances or each case may require,
shall be used for the purposes therein mentioned.
ORDER XLIX CHARTERED HIGH COURTS
Rule 1. Who may serve processes of High Court.
Notice to produce documents,
summonses to witnesses, and every other judical process, issued in the exercise
of the original civil jurisdiction of the High Court, and of its matrimonial,
testamentary and intestate jurisdictions, except summonses to defendants, writs
of execution and notices to respondents may be served by the attorneys in the
suits, or by persons employed by them, or by such other persons as the High
Court, by any rule or order, directs.
Rule 2. Saving in respect of Chartered High
Courts.
Nothing in this Schedule
shall be deemed to limit or otherwise affect any rules in force at the
commencement of this Code for the taking of evidence or the recording of
judgments and orders by a Chartered High Court.
Rule 3. Application of rules.
The following rules shall
not apply to any Chartered High Court in the exercise of its ordinary or
extraordinary original civil jurisdiction, namely:-
(1)
rule 10 and rule 11, clauses (b) and (c), of
Order VII;
(2)
rule 3 of Order X;
(3)
rule 2 of Order XVI;
(4)
rules 5, 6, 8, 9, 10, 11, 13, 14, 15 and 16
(so far as relates to the manner of taking evidence) of Order XVIII;
(5)
rule 1 to 8 of Order XX; and
(6)
rule 7 of Order XXXIII (so far as relates to
the making of a memorandum);
and rule 35 of Order XLI
shall not apply to any such High Court in the exercise of its appellate
jurisdiction.
ORDER L PROVINCIAL.SMALLCAUSE COURTS
Rule 1. Provincial Small Cause Courts.
The provisions hereinafter
specified shall not extend to Court constituted under the Provincial Small
Cause Courts Act 1887 (9 of 1887) [or
under the Berar Small Cause Courts Law, 1905] or to Courts exercising the
jurisdiction of a Court of Small Causes [under
the said Act or Law] [or
to Courts in [any
part of India to which the said Act does not extend] exercising a corresponding
jurisdiction that is to say—
(a)
so much of this Schedule as relates to—
(i)
suits excepted from the cognizance of a Court
of Small Causes or the execution of decrees in such suits;
(ii)
the execution of decrees against immovable
property or the interest of a partner in partnership property;
(iii)
the settlement of issues; and
(b)
the following rules and orders: Order II,
rule 1 (frame of suit);
Order X, rule 3 (record of
examination of parties);
Order XV, except so much of
rule 4 as provides for the pronouncement at once of judgment;
Order XVIII, rule 5 to 12
(evidence); Order XLI, to XLV (appeals);
Order XLVII, rules 2, 3, 5,
6, 7 (review); Order LI.
STATE
AMENDMENT
Uttar Pradesh.
Amendment of the First
Schedule. In the First Schedule to the said Code, in the Order L,
in rule 1, in clause (b) for the words and figures “Order XV, except so much of
rule 4 as provides for the pronouncement at once of judgment”, the words as
figures “Order XV, except so much of rule 4 as provides for the pronouncement
at once of judgment and rule 5” shall be substituted.
[Vide Uttar Pradesh Act 19
of 1973, s. 3]
ORDER LI PRESIDENCY SMALL CAUSE COURTS
Rule 1. Presidency Small Cause Courts.
Save as provided in rules 22
and 23 of Order V, rules 4 and 7 of Order XXI, and rule 4 of Order XXVI, and by
the Presidency Small Cause Courts Act, 1882 (15 of 1882), this Schedule shall
not extend to any suit or proceeding in any Court of Small Causes established
in the towns of Calcutta, Madras and Bombay.
APPENDIX
A
PLEADINGS
(1)
Titles of Suits
IN THE COURT OF .
...............................................................................................
A.B. (add description and
residence) Plaintiff
against
C.D. (add description and
residence) Defendant
(2)
Description of parties in particular Cases
[The
Union of India or the State of, as the case may be.]
The Advocate General of The
Collector of
The State of
The A. B. Company, Limited
having its registered office at
A. B., a public officer of
the C. D. Company.
A. B. (add description and
residence), on behalf of himself and all other creditors of C. D. late of
(add description and
residence)
A. B. (add description and
residence), on behalf of himself and all other holders of debentures issued by
the Company limited.
The Official Receiver.
A. B. a minor (add
description and residence),by C. D. [or by the Court of Wards], his next
friend.
A. B. (add description and
residence), a person of unsound mind [or of weak mind], by. C. D. his next
friend.
A. B. a firm carrying on
business in partnership at
A. (add description and
residence), by his constituted attorney C. D. (add description and residence).
A. B. (add description and
residence), Shebait of Thakur.
A. B. (add description and
residence), executor of C. D. deceased.
A. B. (add description and
residence), heir of C. D. deceased.
(3)
Plaints
No.
1
MONEY
LENT
(Title)
A. B., the above named
plaintiff, states as follows:—
(1)
On the………………………………day of………..20 , he lent the
defendant ……..rupees repayable on the………………………day of…………………………………..
(2)
The defendant has not paid the same,
except…………..rupees paid on the day of…………20…………..
[If the plaintiff claims
exemption from any law of limitation, say:—]
(3)
The plaintiff was a minor [or insane] from
the…………………..day of till the…………….day of………………….. .
(4)
[Facts showing when the cause of action arose
and that the Court has jurisdiction.]
(5)
The Value of the subject-matter of the suit
for the purpose of jurisdiction is rupees and for the purpose of court-fees is…
rupees.
(6)
The plaintiff claims…………rupees, with interest
at………………per cent. from the……day of ………….20………….
No.
2
MONEY
OVERPAID
(Title)
A. B., the above named
plaintiff, states as follows:—
(1)
On the………………day of………….…20……, the plaintiff
agreed to buy and the defendant agreed to sell…………..bars of silver at annas per
tola of fine silver.
(2)
The plaintiff procured the said bars to be
assayed by E.F, who was paid by the defendant for such assay, and E.F declared
each of the bars to contain 1,500 tolas of fine silver, and the plaintiff
accordingly the defendant rupees.
(3)
Each of the said bars contained only 1,200
tolas of fine silver, of which fact the plaintiff was ignorant when he made the
payment.
(4)
The defendant has not repaid the sum so
overpaid. [As in paras 4 and 5 of Form No. 1, and Relief claimed.]
No.
3
GOODS
SOLD AT A FIXED PRICE AND DELIVERED
(Title)
A. B., the above-named
plaintiff, states as follows:—
(1)
On the………………day of…………20……., E. F. sold and
delivered to the defendant [one hundred barrels of flour, or the goods mentioned
in the schedule hereto annexed. or sundry goods.]
(2)
The defendant promised to pay………….. rupees
for the said goods on delivery [or on the……… day of some day before the plaint was filed].
(3)
He has not paid the same.
(4)
E. F. died on the……………day of.....20………By his
last will he appointed his brother, the plaintiff, his executor.
[As in paras 4 and 5 of Form
No. 1,]
(5)
The plaintiff as executor of E.F. claims
[Relief Claimed].
No.
4
GOODS
SOLD AT A REASONABLE PRICE AND DELIVERED
(Title)
A. B., the above-named plaintiff,
states as follows:—
(1)
On the…………..day of…………..……20………, plaintiff
sold and delivered to the defendant [sundry articles of house-furniture], but
no express agreement was made as to the price.
(2)
The goods were reasonably worth rupees.
(3)
The defendant has not paid the money.
[As in paras 4 and 5 of Form
No. 1, and relief claimed]
No.
5
GOODS
MADE AT DEPENDANT’S REQUEST, AND NOT ACCEPTED
(Title)
A. B., the above named
plaintiff, states as follows:—
(1)
On the………….day of………….…20……….., E.F. agreed
with the plaintiff that the plaintiff should make for him [six tables and fifty
chairs] and that E.F should pay for the goods on delivery rupees.
(2)
The plaintiff made the goods, and on
the…………….day of……………20 , offered to deliver them to E.F., and has ever since
been ready and willing so to do.
(3)
E.F. has not accepted the goods or paid for
them.
[As in paras. 4 and 5 of
Form No. 1, and Relief claimed.]
No.
6
DEFICIENCY
UPON A RE-SALE [GOODS SOLD AT AUCTION]
(Title)
A. B., the above named
plaintiff, states as follows:—
(1)
On the………….day of………….…20……….., the plaintiff
put up at auction sundry [goods], subject to the condition that all goods not
paid for and removed by the purchaser within [ten days] after the sale should
be re-sold by auction on his account, of which condition the defendant had
notice.
(2)
The defendant purchased [one crate of
crockery] at the auction at the price of…… rupees.
(3)
The plaintiff was ready and willing to
deliver the goods to the defendant on the date of the sale and for [ten days]
after.
(4)
The defenant did not take away the goods
purchased by him, nor pay for them within [ten days] after the sale, nor
afterwards.
(5)
On the……………day of…………20……, the plaintiff
re-sold the [crate of crockery], on account of the defendant, by public
auction, for rupees.
(6)
The expenses attendant upon such re-sale
amounted to… rupees.
(7)
The defendant has not paid the deficiency
thus arising, amounting to rupees. [As in paras 4 and 5 of Form No. I, and
Relief claimed.]
No. 7
SERVICES
AT A REASONABLE RATE
(Title)
A. B., the above named
plaintiff, states as follows:—
(1)
Between the……………. day of…………….……20………. , and
the……… day of………………20……at , plaintiff [executed sundry drawings, designs and
diagrams] for the defendant, at his request; but no express agreement was made
as to the sum to be paid for such services.
(2)
The services were reasonably worth… rupees.
(3)
The defendant has not paid the money.
[As in paras 4 and 5 of Form
No. 1, and Relief claimed.]
No.
8
SERVICES
AND MATERIALS AT A REASONABLE COST
(Title)
A. B., the above named
plaintiff, states as follows:—
(1)
On the……………day of……………..…20………, at……………. the
plaintiff built a house [known as No. ………………, in…..], and furnished the
materials therefor, for the defendant, at his request, but no express agreement
was made as to the amount to be paid for such work and materials.
(2)
The work done and materials supplied were
reasonably worth…… rupees.
(3)
The defendant has not paid the money.
[As in paras 4 and 5 of Form
No. 1, and Relief claimed.]
No.
9
USE
AND OCCUPATION
(Title)
A. B., the above-named
plaintiff, executor of the will of X. Y., deceased, states as follows:—
(1)
That the defendant occupied the [house
No……...., Street], by permission of the said X.Y, from the…….day
of………………..…20…............., until the day of……………20.…., and no agreement was
made as to payment for the use of the said premises.
(2)
That the use of the said premises for the
said period was reasonably worth rupees.
(3)
The defendant has not paid the money. [As in
paras 4 and 5 of Form No. I.]
(4)
The plaintiff as executor of X Y, claims
[relief claimed].
No.
10
ONANAWARD
(Title)
A. B., the above-named
plaintiff, states as follows:—
(1)
On the…….day of……….…20…, the plaintiff and
defendant, having a difference between them concerning [a demand of the plaintiff
for the price of ten barrels of oil which the defendant refused to pay]; agreed
in writing to submit the difference to the arbitration of E. F and G. H. and
the original document is annexed hereto.
(2)
On the…………. ….day of……………………20 , the
arbitrators awarded that the defendant should [pay the plaintiff rupees].
(3)
The defendant has not paid the money.
[As in paras 4 and 5 of Form
No. 1 and relief claimed.]
No.
11
ON
A FOREIGN JUDGMENT
(Title)
A. B., the above-named
plaintiff, states as follows:—
(1)
On the…………day of…………20……., at…….in the State
[or Kingdom] of….., the….. Court of that State [or Kingdom,] in a suit therein
pending between the plaintiff and the defendant, duly adjudged that the
defendant should pay to the plaintiff rupees, with interest from the said date.
(2)
The defendant has not paid the money.
[As in paras. 4 and 5 of
Form No. 1, and Relief claimed.]
No.
12
AGAINST
SURETY FOR PAYMENT OF RENT
(Title)
A. B., the above-named
plaintiff, states as follows:—
(1)
On the………..day of……………20..., E. F. hired from
the plaintiff for the term of years, the [house No……………., ………………street], at the
annual rent of rupees, payable [monthly].
(2)
The defendant agreed, in consideration of the
letting of the premises to E.F, to gurantee the punctual payment of the rent.
(3)
The rent for the month of ……….20………..,
amounting to… rupees, has not been paid.
[If, by the terms of the
agreement, notice is required to be given to the surety, add:—]
(4)
On the………………….day of…………..19… , the plaintiff
gave notice to the defendant of the non-payment of the rent, and demanded
payment thereof.
(5)
The defendant has not paid the same.
[As in paras. 4 and 5 of
Form No. I, and relief claimed.]
No.
13
BREACH
OF AGREEMENT TO PURCHASE LAND
(Title)
A. B., the above-named
plaintiff, states as follows:—
(1)
On the…………….day of………20 , the plaintiff and
defendant entered into an agreement, and the Original document is hereto
annexed.
[Or, on the…………day
of………………20 , the plaintiff and defendant mutually agreed that the plaintiff
should sell to the defendant and that the defendant should purchase from the
plaintiff forty bighas of land in the village of……….for rupees.]
(2)
On the…………. day of………….……20..….., the
plaintiff, being then the absolute owner of the property [and the same being
free from all incumbrances, as was made to appear to the defendant], tendered
to the defendant a sufficient instrument of transfer of the same [or, was ready
and willing, and is still ready and willing, and offered, to transfer the same
to the defendant by a sufficient instrument] on the payment by the defendant of
the money agreed upon.
(3)
The defendant has not paid the money.
[As in paras. 4 and 5 of
Form No. I, and relief claimed.]
No.
14
NOT
DELIVERING GOODS SOLD
(Title)
A. B., the above-named
plaintiff, states as follows:—
(1)
On the……………day of…………20….., the plaintiff and
defendant mutually agreed that the defendant should deliver [one hundred
barrels of flour] to the plaintiff on the… day of……........…20..…..., and that
the plaintiff should pay there for rupees on delivery.
(2)
On the [said] day the plaintiff was ready and
willing, and offered, to pay the defendant the said sum upon delivery of the
goods.
(3)
The defendant has not delivered the goods,
and the plaintiff has been deprived of the profits which would have accrued to
him from such delivery.
[As in paras. 4 and 5 of
Form No. 1, and relief claimed.]
No.
15
WRONGFUL
DISMISSAL
(Title)
A. B., the above-named
plaintiff, states as follows:—
(1)
On the……………day of…………20...….., the plaintiff
and defendant mutually agreed that the plaintiff should serve the defendant as
[an accountant, or in the capacity of foreman, or as the case may be], and that
the defendant should employ the plaintiff as such for the term of [one year]
and pay him for his services rupees [monthly].
(2)
On the………….. day of……….……20 , the plaintiff
entered upon the service of the defendant and has ever since been, and still
is, ready and willing to continue in such service during the remainder of the
said year whereof the defendant always has had notice.
(3)
On the…….day of………..……20...….., the defendant
wrongfully discharged the plaintiff, and refused to permit him to serve as
aforesaid, or to pay him for his services.
[As in paras. 4 and 5 of
Form No. 1, and relief claimed.]
No.
16
BREACH
OF CONTRACT TO SERVE
(Title)
A. B., the above-named
plaintiff, states as follows:—
(1)
On the………day of……….……20……, the plaintiff and
defendant mutually agreed that the plaintiff should employ the defendant at as
[annual] salary of…..rupees, and that the defendant should serve the plaintiff
as [an artist] for the term of [one year].
(2)
The plaintiff has always been ready and
willing to perform his part of the agreement [and on the day of…….…….20 ,
offered so to do].
(3)
The defendant (entered upon) the service of
the plaintiff on the above-mentioned day, but afterwards, on the……….day
of……….……20 , he refused to serve the plaintiff as aforesaid.
[As in paras. 4 and 5 of
Form No. 1, and relief claimed.]
No.
17
AGAINST
A BUILDER FOR DEFECTIVE WORKMANSHIP
(Title)
A. B., the above-named
plaintiff, states as follows:—
(1)
On the………….day of……….……20….., the plaintiff
and defendant entered into an agreement, and the original document is hereto
annexed. [Or state the tenor of the contract.]
(2)
[The plaintiff duly performed all the
conditions of the agreement on his part.]
(3)
The defendant [built the house referred to in
the agreement in a bad and unworkman like manner]. [As in paras. 4 and 5 of
Form No. 1, and Relief claimed.]
No.
18
ON
A BOND FOR THE FIDELITY OF A CLERK
(Title)
A. B., the above-named
plaintiff, states as follows:—
(1)
On the………day of……..……20 , the plaintiff took
E.F. into his employment as a clerk.
(2)
In consideration thereof, on the………day
of…….……20 , the defendant agreed with plaintiff that if E.F. should not
faithfully perform his duties as a clerk to the plaintiff, or should fail to
account to the plaintiff for all monies, evidences of debt or other property
received by him for the use of the plaintiff, the defendant would pay to the
plaintiff whatever loss he might sustain by reason thereof, not
exceeding…rupees.
[Or, 2. In consideration
thereof, the defendant by his bond of the same date bound himself to pay the
plaintiff the penal sum of………rupees, subjects to the condition that if E.F.
should faithfully perform his duties as clerk and cashier to the plaintiff and
should justly account to the plaintiff for all monies, evidences of debt or
other property which should be at any time held by him in trust for the
plaintiff, the bond should be void.]
[Or 2. In consideration
thereof, on the same date the defendant executed a bond in favour of the
plaintiff, and the original document is hereto annexed.]
(3)
Between the………..day of………..…20...….., and
the…………………..day of ………20. , E.F. received money and other property, amounting
to the value of……….rupees, for the use of the plaintiff, for which sum he has
not accounted to him, and the same still remains due and unpaid.
[As in paras. 4 and 5 of
Form No. 1, and Relief claimed.]
No.
19
BY
TENANT AGAINST LANDLORD, WITH SPECIAL DAMAGE
(Title)
A. B., the above-named
plaintiff, states as follows:—
(1)
On the……day of………20. , the defendant, by a
registered instrument, let to the plaintiff [the house No……..Street] for the
term of……..years, contracting with the plaintiff, that he, the plaintiff, and
his legal representatives should quietly enjoy possession thereof for the said
term.
(2)
All conditions were fulfilled and all things
happened necessary to entitle the plaintiff to maintain this suit.
(3)
On the…………day of………….20. , during the said
term, E.F. who was the lawful owner of the said house, lawfully evicted the
plaintiff therefrom, and still withholds the possession thereof from him.
(4)
The plaintiff was thereby [prevented from
continuing the business of a tailor at the said place, was compelled to expend
rupees in moving, and lost the custom of G.H. and I.J by such removal].
[As in paras. 4 and 5 of
Form No. 1, and Relief claimed.]
No.
20
ON
AN AGREEMENT OF INDEMNITY
(Title)
A. B., the above-named
plaintiff, states as follows:—
(1)
On the..............day
of.......................20. , the plaintiff and defendant, being partners in
trade under the style of A. B. and C.D., dissolved the partnership, and
mutually agreed that the defendant should take and keep all the partnership
property, pay all debts of the firm and indemnify the plaintiff against all
claims that might be made upon him on account of any indebtedness of the firm.
(2)
The plaintiff duly performed all the
conditions of the agreement on his part.
(3)
On the.............. day
of.....................20....….., [a judgment was recovered against the
plaintiff and defendant by E.F., in the High Court of Judicature at , upon a
debt due from the firm to E.F., and on the day of.................20.….,] the
plaintiff paid. rupees [in satisfaction of the same].
(4)
The defendant has not paid the same to the
plaintiff. [As in paras. 4 and 5 of Form No. 1, and Relief claimed.]
No.
21
PROCURING
PROPERTY BY FRAUD
(Title)
A. B., the above-named
plaintiff, states as follows:—
(1)
On the...............day of
..................20.…., the defendant, for the purpose of inducing the plaintiff
to sell him certain goods, represented to the plaintiff that [he, the
defendant, was solvent, and worth. rupees over all his liabilities].
(2)
The plaintiff was thereby induced to sell
[and deliver] to the defendant, [dry goods] of the value of rupees.
(3)
The said representations were false [or state
the particular falsehoods] and were then known by the defendant to be so.
(4)
The defendant has not paid for the goods,
[Or, if the goods were not delivered.] The plaintiff, in preparing and shipping
the goods and procuring their restoration, expended rupees.
[As in paras. 4 and 5 of
Form No. 1, and Relief claimed.]
No.
22
FRAUDULENTLY
PROCURING CREDIT TO BE GIVEN TO ANOTHER PERSON
(Title)
A. B., the above-named
plaintiff, states as follows:—
(1)
On the..........day of.................20.....….,
the defendant, represented to the plaintiff that E.F., was solvent and in good
credit, and worth................rupees over all his liabilities [or that E.F,
then held a responsible situation and was in good circumstances, and might
safely be trusted with goods on credit].
(2)
The plaintiff was thereby induced to sell to
E.F., (rice) of the value of........ rupees [on. Months credit].
(3)
The said representations were false and were
then known by the defendant to be so, and were made by him with intent to
deceive and defraud the plaintiff [or to deceive and injure the plaintiff].
(4)
E.F, [did not pay for the said goods at the
expiration of the credit aforesaid, or] has not paid for the said rice, and the
plaintiff has wholly lost the same.
[As in paras. 4 and 5 of
Form No. 1, and Relief claimed.]
No.
23
POLLUTING
THE WATER UNDER THE PLAINTIFF'S LAND
(Title)
A. B., the above-named
plaintiff, states as follows:—
(1)
The plaintiff is, and at all the times
hereinafter mentioned was, possessed of certain lands called..........and
situate in. and of a well therein, and of water in the well, and was entitled
to the use and benefit of the well and of the water therein, and to have
certain springs and streams of water which flowed and ran into the well to
supply the same to flow or run without being fouled or polluted.
(2)
On the........... day of
............20.........., the defendant wrongfully fouled and polluted the well
and the water therein and the springs and streams of water which flowed into
the well.
(3)
In consequence the water in the well became
impure and unfit for domestic and other necessary purposes, and the plaintiff
and his family are deprived of the use and benefit of the well and water.
[As in paras. 4 and 5 of
Form No. 1, and relief claimed.]
No.
24
CARRYING
ON A NOXIOUS MANUFACTURE
(Title)
A. B., the above-named
plaintiff, states as follows:—
(1)
The plaintiff is, and at all the times
hereinafter mentioned was, possessed of certain lands called..........situate
in...................
(2)
Ever since the.................. day
of....................20....., the defendant has wrongfully caused to issue
from certain smelting works carried on by the defendant large quantities of
offensive and unwholesome smoke and other vapours and noxious matter, which
spread themselves over and upon the said lands, and corrupted the air, and
settled on the surface of the lands.
(3)
Thereby the trees, hedges, herbage and crops
of the plaintiff growing on the lands were damaged and deteriorated in value,
and the cattle and live-stocks of the plaintiff on the lands became unhealthy,
and many of them were poisoned and died.
(4)
The plaintiff was unable to graze the lands
with cattle and sheep as he otherwise might have done, and was obliged to
remove his cattle, sheep and farming stock therefrom, and has been prevented
from having so beneficial and healthy a use and occupation of the lands as he
otherwise would have had.
[As in paras. 4 and 5 of
Form No. 1, and relief claimed.]
No.
25
OBSTRUCTING
A RIGHT OF WAY
(Title)
A. B., the above-named
plaintiff, states as follows:—
(1)
The plaintiff is, and at the time hereinafter
mentioned was, possessed of [a house in the village of ].
(2)
He was entitled to a right of way from the
[house] over a certain field to a public highway and back again from the
highway over the field to the house, for himself and his servants [with
vehicles, or on foot] at all times of the year.
(3)
On the................day
of.......................20. , defendant wrongfully obstructed the said way, so
that the plaintiff could not pass [with vehicles, or on foot, or in any manner]
along the way [and has ever since wrongfully obstructed the same].
(4)
(State special damage, if any).
[As in paras. 4 and 5 of
Form No. 1, and relief claimed.]
No.
26
OBSTRUCTING
A HIGHWAY
(Title)
(1)
The defendant wrongfully dug a trench and
heaped up earth and stones in the public highway leading from..................
to. so as to obstruct it.
(2)
Thereby the plaintiff, while lawfully passing
along the said highway, fell over the said earth and stones, [or into the said
trench] and broke his arm, and suffered great pain, and was prevented from
attending to his business for a long time, and incurred expense for medical
attendance.
[As in paras. 4 and 5 of
Form No. 1, and relief claimed.]
No.
27
DIVERTING
A WATER-COURSE
(Title)
A. B., the above-named
plaintiff, states as follows:—
(1)
The plaintiff is, and at the time hereinafter
mentioned was, possessed of a mill situated on a [stream] known as the.........
, in the village of........... , district of..........
(2)
By reason of such possession the plaintiff
was entitled to the flow of the stream for working the mill.
(3)
On the....................... day
of................20 , the defendant, by cutting the bank of the stream,
wrongfully diverted the water thereof, so that less water ran into the
plaintiff’s mill.
(4)
By reason thereof the plaintiff has been
unable to grind more than....... sacks per day, whereas, before the said
diversion of water, he was able to grind sacks per day.
[As in paras. 4 and 5 of Form
No. 1, and relief claimed.]
No.
28
OBSTRUCTING
A RIGHT TO USE WATER FOR IRRIGATION
(Title)
A. B., the above-named
plaintiff, states as follows:—
(1)
The plaintiff is, and was at the times
hereinafter mentioned was, possessed of certain lands situate, etc., and
entitled to take and use a portion of the water of a certain stream for
irrigating the said lands.
(2)
On the.................day
of.......................20.........., the defendant prevented the plaintiff
from taking and using the said portion of the said water as aforesaid, by
wrongfully obstructing and diverting the said stream.
[As in paras. 4 and 5 of
Form No. 1, and relief claimed.]
No.
29
INJURIES
CAUSED BY NEGLIGENCE ON A RAILROAD
(Title)
A. B., the above-named
plaintiff, states as follows:—
(1)
On the............ day
of.............20........., the defendants were common carriers of passengers
by railway between....... ...... and ...................
(2)
On that day the plaintiff was a passenger in
one of the carriages of the defendants on the said railway.
(3)
While he was such passenger,
at............... [or near the station of................. or between the
stations of ................... and ], a collision occurred on the said railway
caused by the negligence and unskilfulness of the defendants’ servants, whereby
the plaintiff was much injured [having his leg broken, his head cut, etc., and
state the special damage, if any, as], and incurred expense for medical
attendance and is permanently disabled from carrying on his former business as
[a salesman].
[As in paras. 4 and 5 of
Form No. 1, and relief claimed.]
[Or thus:—2. On that day the
defendants by their servants so negligently and unskillfully drove and managed
an engine and a train of carriages attached thereto upon and along the
defendant’s railway which the plaintiff was then lawfully crossing that the
said engine and train were driven and struck against the plaintiff, whereby,
etc., as in para. 3].
No.
30
INJURIES
CAUSED IN NEGLIGENT DRIVING
(Title)
A. B., the above-named
plaintiff, states as follows:—
(1)
The plaintiff is a shoemaker, carrying on
business at …………the defendant is a merchant of …………………….
(2)
On the …………. day of …………………20………, the
plaintiff was walking southward along Chowringhee, in the City of Calcutta, at
about 3 o’clock in the afternoon. He was obliged to cross Middleton Street,
which is a street running into Chowringhee at right angles. While he was
crossing this street, and just before he could reach the foot pavement on the
further side thereof, a carriage of the defendant's, drawn by two horses under
the charge and control of the defendant's servants, was negligently, suddenly
and without any warning turned at a rapid and dangerous pace out of Middleton
Street into Chowringhee. The pole of the carriage struck the plaintiff and knocked
him down, and he was much trampled by the horses.
(3)
By the blow and fall and trampling the
plaintiff’s left arm was broken and he was bruised and injured on the side and
back, as well as internally, and in consequence thereof the plaintiff was for
four months ill and in suffering, and unable to attend to his business, and
incurred heavy medical and other expenses, and sustained great loss of business
and profits.
[As in paras. 4 and 5 of
Form No. 1, and relief claimed.]
No.
31
FOR
MALICIOUS PROSECUTION
(Title)
A. B., the above-named
plaintiff, states as follows:—
(1)
On the ………….. day of ………………..…20 , the
defendant obtained a warrant of arrest from …….…… [a Magistrate of the said
city, or as the case may be] on a charge of , and the plaintiff was arrested thereon,
and imprisoned for [days, or hours, and gave bail in the sum of rupees to
obtain his release].
(2)
In so doing the defendant acted maliciously
and without reasonable or probable cause.
(3)
On the …………….. day of ……………….20 , the
Magistrate dismissed the complaint of the defendant and acquitted the
plaintiff.
(4)
Many persons, whose names are unknown to the
plaintiff, hearing of the arrest, and supposing the plaintiff to be a criminal,
have ceased to do business with him; or in consequence of the said arrest, the
plaintiff lost his situation as clerk to one E.F.; or in consequence the
plaintiff suffered pain of body and mind, and was prevented transacting his
business, and was injured in his credit, and incurred expense in obtaining his
release from the said imprisonment and in defending himself against the said
complaint.
[As in paras. 4 and 5 of
Form No. 1, and relief claimed].
No.
32
MOVABLES
WRONGFULLY DETAINED
(Title)
A. B., the above-named
plaintiff, states as follows:—
(1)
On the …………….. day of ……………20 , plaintiff
owned [or state facts showing a right to the possession] the goods mentioned in
the schedule hereto annexed [or describe the goods,] the estimated value of
which is rupees.
(2)
From that day until the commencement of this
suit the defendant has detained the same from the plaintiff
(3)
Before the commencement of the suit, to wit,
on the …………….. day of……….20 , the plaintiff demanded the same from the
defendant, but he refused to deliver them.
[As in Paras 4 and 5 of Form
No. 1.]
6.
The plaintiff claims—
(1)
delivery of the said goods, or rupees, in
case delivery cannot be had;
(2)
rupees compensation for the detention
thereof.
No.
33
AGAINST
A FRAUDULENT PURCHARER AND HIS TRANSFEREE WITH NOTICE
(Title)
A. B., the above-named
plaintiff, states as follows:—
(1)
On the …………... day of ….……..……20 , the
defendant C.D., for the purpose of including the plaintiff to sell him certain
goods, represented to the plaintiff that [he was solvent, and worth ……… rupees
over all his liabilities].
(2)
The plaintiff was thereby induced to sell and
deliver to C.D. [one hundred boxes of tea], the estimated value of which is
rupees.
(3)
The said representations were false, and were
then known by C.D. to be so [or at the time of making the said representations,
C.D. was insolvent, and knew himself to be so].
(4)
C.D. afterwards transferred the said goods to
the defendant E.F. without consideration [or who had notice of the falsity of
the representation].
(5)
[Facts showing when the cause of action arose
and that the Court has jurisdiction. ]
(6)
The value of the subject-matter of the suit
for the purpose of jurisdiction is rupees and for the purpose of court-fees is
rupees.
(7)
The plaintiff claims—
(1)
delivery of the said goods, or rupees, in
case delivery cannot be had;
(2)
rupees compensation for the detention thereof.
No.
34
RESCISSION
OF A CONTRACT ON THE GROUND OF MISTAKE
(Title)
A. B., the above-named
plaintiff, states as follows:—
(1)
On the ……………. day of ………………………20……….. , the
defendant represented to the plaintiff that a certain piece of ground belonging
to the defendant, situated at , contained [ten bighas].
(2)
The plaintiff was thereby induced to purchase
the same at the price of rupees in the belief that the said representation was
true, and signed an agreement, of which the original is hereto annexed. But the
land has not been transferred to him.
(3)
On the …………….. day of ………………………20………, the
plaintiff paid the defendant rupees as part of the purchase money.
(4)
That the said piece of ground contained in
fact only [five bighas].
(5)
[Facts showing when the cause of action arose
and that the Court has jurisdiction.]
(6)
The value of the subject-matter of the suit
for the purpose of jurisdiction is............. rupees and for the purpose of
court-fees is rupees.
(7)
The plaintiff claims—
(1)
.............. rupees, with interest from
the............. day of............... 20.......... .
(2)
that the said agreement be delivered up and
cancelled.
No.
35
AN
INJUNCTION RESTRAINING WASTE
(Title)
A. B., the above-named
plaintiff states as follows:—
(1)
The plaintiff is the absolute owner of [describe
the property].
(2)
The defendant is in possession of the same
under a lease from the plaintiff.
(3)
The defendant has [cut down a number of
valuable trees, and threatens to cut down many more for the purpose of sale]
without the consent of the plaintiff.
(4)
[Facts showing when the cause of action arose
and that the Court has jurisdiction.]
(5)
The value of the subject-matter of the suit
for the purpose of jurisdiction is rupees and for the purpose of court-fees is
rupees.
(6)
The plaintiff claims that the defendant be
restrained by injunction from committing or permitting any further waste on the
said premises.
[Pecuniary compensation may
also be claimed.]
No.
36
INJUNCTION
RESTRAINING NUISANCE
(Title)
A. B., the above-named
plaintiff, states as follows:—
(1)
Plaintiff is, and at all the times
hereinafter mentioned was, the absolute owner of [the house No. Street,
Calcutta].
(2)
The defendant is, and at all the said times
was, the absolute owner of [a plot of ground in the same street ].
(3)
On the ................ day of...............20..........,
the defendant erected upon his said plot a slaughter- house, and still
maintains the same; and from that day until the present time has continually
caused cattle to be brought and killed there [and has caused the blood and offal
to be thrown into the street opposite the said house of the plaintiff].
(4)
[In consequence the plaintiff has been
compelled to abandon the said house, and has been unable to rent the same.]
(5)
[Facts showing when the cause of action arose
and that the Court has jurisdiction.]
(6)
The value of the subject-matter of the suit
for the purpose of jurisdiction is rupees and for the purpose of court-fees is
rupees.
(7)
The plaintiff claims that the defendant be
restrained by injunction from committing or permitting any further nuisance.
No.
37
PUBLIC
NUISANCE
(Title)
A. B., the above-named
plaintiff, states as follows:—
(1)
The defendant has wrongly heaped up earth and
stones on a public road known as Street at...........so as to obstruct the
passage of the public along the same and threatens and intends, unless
restrained from so doing, to continue and repeat the said wrongful act.
(2)
[The
plaintiff has obtained the leave of the Court for the institution of this
suit.]
[As in paras. 4 and 5 of
Form No. 1]
5.
The plaintiff claims—
(1)
a declaration that the defendant is not
entitled to obstruct the passage of the public along the said road;
(2)
an injunction restraining the defendant from
obstructing the passage of the public along the said public road and directing
the defendant to remove the earth and stones wrongfully heaped up as aforesaid.
No.
38
INJUNCTION
AGAINST THE DIVERSION OF A WATER-COURSE
(Title)
A. B., the above-named
plaintiff, states as follows:—
[As in form No. 27.]
The plaintiff claims that
the defendant be restrained by injunction from diverting the water as
aforesaid.
No.
39
RESTORATION
OF MOVABLE PROPERTY THREATENED WITH DESTRUCTION AND FOR AN INJUNCTION
(Title)
A. B., the above-named
plaintiff, states as follows:—
(1)
Plaintiff is, and at all times hereinafter mentioned
was, the owner of [a portrait of his grandfather which was executed by an
eminent painter], and of which no duplicate exists [or state any facts showing
that the property is of a kind that cannot be replaced by money].
(2)
On the.............. day of...............20......,
he deposited the same for the safe-keeping with the defendant.
(3)
On the............... day
of...............20......, he demanded the same from the defendant and offered
to pay all reasonable charges for the storage of the same.
(4)
The defendant refuses to deliver the same to
the plaintiff and threatens to conceal, dispose of, cut or injure the same if
required to deliver it up.
(5)
No pecuniary compensation would be an
adequate compensation to the plaintiff for the loss of the [painting].
[As in paras. 4 and 5 of
Form No. 1. ]
8.
The plaintiff claims—
(1)
that the defendant be restrained by
injunction from disposing of, injuring or concealing the said [painting],
(2)
that he be compelled to deliver the same to
the plaintiff.
No.
40
INTERPLEADER
(Title)
A. B., the above-named
plaintiff, states as follows:—
(1)
Before the date of the claims hereinafter
mentioned G.H. deposited with the plaintiff [describe the property] for
[safe-keeping].
(2)
The defendant C.D. claims the same [under an
alleged assignment thereof to him from G.H.].
(3)
defendant E. F. also claims the same [under
an order of G.H. transferring the same to him.]
(4)
The plaintiff is ignorant of the respective
rights of the defendants.
(5)
He has no claim upon the said property other
than for charges and costs, and is ready and willing to deliver it to such
persons as the Court shall direct.
(6)
The suit is not brought by collusion with
either of the defendants. [As in paras. 4 and 5 of Form No. 1.]
9.
The plaintiff claims—
(1)
that the defendants be restrained, by
injunction, from taking any proceedings against the plaintiff in relation
thereto;
(2)
that they be required to interplead together
concerning their claims to the said property;
(3)
[that some person be authorised to receive
the said property pending such litigation;]
(4)
that upon delivering the same to such
[person] the plaintiff be discharged from all liability to either of the
defendants in relation thereto.
No.
41
ADMINISTRATION
BY CREDITOR ON BEHALF OF HIMSELF AND ALL OTHER CREDITORS
(Title)
A. B., the above-named
plaintiff, states as follows:—
(1)
E.F. late of................., was at the
time of his death, and his estate still is, indebted to the plaintiff in the
sum of [here insert nature of debt and security, if any].
(2)
E.F. died on or about the...........................
day of.......................By his last will, dated the........... day
of.............he appointed C.D. his executor [or devised his estate in trust,
etc., or died intestate, as the case may be].
(3)
The will was proved by C.D. [or letters of
administration were granted, etc.].
(4)
The defendant has possessed himself of the
movable [and immovable], or the proceeds of the immovable property of E.F. and
has not paid the plaintiff his debt.
[As in paras. 4 and 5 of
Form No. 1.]
7. The plaintiff claims that an account may be
taken of the movable [and immovable] property of E.F., deceased, and that the
same may be administered under the decree of the Court.
No.
42
ADMINISTRATION
BY SPECIFIC LEGATEE
(Title)
[Alter
Form No. 41 thus]
[Omit paragraph 1 and
commence paragraph 2] E.F. late of ..... , died on or about
the.......................... day of......................By his last will,
dated the...................day of he appointed C.D., his executor, and
bequeathed to the plaintiff [here state the specific legacy]. For paragraph 4
substitute—
The defendant is in
possession of the movable property of E.F., and, amongst other things, of the
said [here name the subject of the specific bequest].
For the commencement of
paragraph 7 substitute—
The plaintiff claims that
the defendant may be ordered to deliver to him the said [here name the subject
of the specific bequest], or that, etc.
No.
43
ADMINISTRATION
BY PECUNIARY LEGATEE
(Title)
[Alter
Form No. 41 thus]
[Omit paragraph 1 and
substitute for paragraph 2] E.F, late of , died on or about the..............
day of...............................................By his last will, dated
the day of...................... he appointed C.D. his executor, and bequeathed
to the plaintiff a legacy of............ rupees.
In
paragraph 4 substitute “legacy” for “debt”
Another
form
(Title)
E. F, the above-named
plaintiff, states as follows:—
(1)
A. B. of K. in the…………………died on the…………….
Day of by his last will, dated the........... day of , he appointed the defendant
and M.N. [who died in the testator’s lifetime] his executors, and bequeathed
his property, whether movable or immovable, to his executors in trust, to pay
the rents and income thereof to the plaintiff for his life; and after his
decease, and in default of his having a son who should attain twenty-one, or a
daughter who should attain that age or marry, upon trust as to his immovable
property for the person who would be the testator's heir-at-law, and as to his
movable property for the persons who would be the testator’s next-of-kin if he
had died intestate at the time of the death of the plaintiff and such failure
of his issue as aforesaid.
(2)
The will was proved by the defendant on
the...............................day of The plaintiff has not been married.
(3)
The testator was at his death entitled to
movable and immovable property; the defendant entered into the receipt of the
rents of the immovable property and got in the movable property; he has sold
some part of the immovable property.
[As in paras. 4 and 5 of
Form No. 1.]
6.
The plaintiff claims—
(1)
to have a movable and immovable property of
A. B. administered in this Court, and for that purpose to have all proper
directions given and accounts taken;
(2)
such further or other relief as the nature of
the case may require.
No.
44
EXECUTION
OF TRUSTS
(Title)
A. B., the above-named
plaintiff, states as follows:—
(1)
He is one of the trustees under an instrument
of settlement bearing date on or about the.................day of made upon the
marriage of E.E. and G.H., the father and mother of the defendant [or an
instrument of transfer of the estate and effects of E.F. for the benefit of
C.D., the defendant, and the other creditors of E.F.].
(2)
A.B. has taken upon himself the burden of the
said trust, and is in possession of [or of the proceeds of] the movable and
immovable property transferred by the said instrument.
(3)
C.D. claims to be entitled to a beneficial
interest under the instrument.
[As in paras. 4 and 5 of
Form No. 1.]
6.
The plaintiff is desirous to account for all the rents and profits of the said
immovable property [and the proceeds of the sale of the said, or of part of the
said, immovable property, or movable, or the proceeds of the sale of, or of
part of, the said movable property, or the profits occurring to the plaintiff
as such trustee in the execution of the said trust]; and he prays that the
Court will take the accounts of the said trust, and also that the whole of the
said trust estate may be administered in the Court for the benefit of C.D., the
defendant, and all other persons who may be interested in such administration,
in the presence of C.D. and such other persons so interested as the Court may
direct, or that C.D. may show good cause to the contrary.
[N.B.—Where the suit is by a
beneficiary, the plaint may be modelled mutatis mutandis on the plaint by a
legatee.]
No.
45
FORECLOSURE
OR SALE
(Title)
A. B., the above-named
plaintiff, states as follows:—
(1)
The plaintiff is mortgagee of lands belonging
to the defendant.
(2)
The following are the particulars of the
mortgage:—
(a)
(date);
(b)
(names of mortgagor and mortgagee);
(c)
(sum secured);
(d)
(rate of interest);
(e)
(Property subject to mortgage);
(f)
(amount now due);
(g)
(if the plaintiff's title is derivative,
state shortly the transfers or devolution under which he claims).
(If the plaintiff is
mortgagee in possession add).
(3)
The plaintiff took possession of the
mortgaged property on the .........day of and is ready to account as mortgagee
in possession from that time. [As in paras. 4 and 5 of Form No. 11
6.
The plaintiff claims—
(1)
payment, or in default [sale or] foreclosure
[and possession];
[Where Order 34, rule 6,
applies.]
(2)
in case the proceeds of the sale are found to
be insufficient to pay the amount due to the plaintiff then that liberty be
reserved to the plaintiff to apply for [an
order for the balance].
No.
46
REDEMPTION
(Title)
A. B., the above-named
plaintiff, states as follows:—
(1)
The plaintiff is mortgagor of lands of which
the defendant is mortgagee.
(2)
The following are the particulars of the
mortgage:—
(a)
(date);
(b)
(names of mortgagor and mortgagee);
(c)
(sum secured);
(d)
(rate of interest);
(e)
(property subject to mortgage);
(f)
(If the plaintiff’s title is derivative,
state shortly the transfers or devolution under which he claims).
(If the defendant is
mortgagee in possession, add)
(3)
The defendant has taken possession [or has
received the rents] of the mortgaged property. [As in paras. 4 and 5 of Form
No. 1.]
6. The plaintiff claims to redeem the said
property and to have the same reconveyed to him [and to have possession
thereof]. [together
with mesne profits].
No.
47
SPECIFIC
PERFORMANCE (No. 1)
(Title)
A. B., the above-named
plaintiff, states as follows:—
(1)
By an agreement dated the........... day
of................and signed by the defendant, he contracted to buy of [or sell
to] the plaintiff certain immovable property therein described and deferred to,
for the sum of rupees.
(2)
The plaintiff has applied to the defendant
specifically to perform the agreement on his part, but the defendant has not
done so.
(3)
The plaintiff has been and still is ready and
willing specifically to perform the agreement on his part of which the
defendant has had notice.
[As in paras. 4 and 5 of
Form No. 1.]
6. The plaintiff claims that the Court will
order the defendant specifically to perform the agreement and to do all acts
necessary to put the plaintiff in full possession of the said property [or to
accept a transfer and possession of the said property] and to pay the costs of
the suit.
No.
48
SPECIFIC
PERFORMANCE (No. 2)
(Title)
A. B., the above-named
plaintiff, states as follows:—
(1)
On the..............day of..............20 ,
the plaintiff and defendant entered into an agreement, in writing, and the
original document is hereto annexed.
The defendant was absolutely
entitled to the immovable property described in the agreement.
(2)
On the...........day
of...............20............, the plaintiff tendered rupees to the
defendant, and demanded a transfer of the said property by a sufficient
instrument.
(3)
On the..........day of..................20..........,
the plaintiff again demanded such transfer. [Or the defendant refused to
transfer the same to the plaintiff.]
(4)
The defendant has not executed any instrument
of transfer.
(5)
The plaintiff is still ready and willing to
pay the purchase-money of the said property to the defendant.
[As in paras. 4 and 5 of
Form No. 1.]
8.
The plaintiff claims—
(1)
that the defendant transfers the said
property to the plaintiff by a sufficient instrument [following the terms of
the agreement];
(2)
rupees compensation for withholding the same.
No.
49
PARTNERSHIP
(Title)
A.B., the above-named
plaintiff, states as follows:—
(1)
He and C.D., the defendant, have been for
years [or months] past carrying on business together under articles of
partnership in writing [or under a deed, or under a verbal agreement].
(2)
Several disputes and differences have arisen
between the plaintiff and defendant as such partners whereby it has become
impossible to carry on the business in partnership with advantage to the
partners, [Or the defendant has committed the following breaches of the
partnership articles:—
(1)
(2)
(3) .]
[As in paras. 4 and 5 of
Form No. 1.]
5.
The plaintiff claims—
(1)
dissolution of the partnership;
(2)
that accounts be taken;
(3)
that a receiver be appointed.
(N.B.—In suits for the winding-up
of any partnership, omit the claim for dissolution; and instead insert a
paragraph stating the facts of the partnership having been dissolved).
(4)
WRITTEN STATEMENTS
General
Defences
Denial—The
defendant denies that (set out facts). The defendant does not admit that (set
out facts).
The defendant admits
that………………but says that……………
The defendant denies that he
is a partner in the defendant firm of……………………
Protest—The
defendant denies that he made the contract alleged or any contract with the
plaintiff. The defendant denies that he contracted with the plaintiff as
alleged or at all.
The defendant admits assets
but not the plaintiff’s claim.
The defendant denies that
the plaintiff sold to him the goods mentioned in the plaintiff or any of them.
Limitation—The
suit is barred by article.....................................or
article...............of the Second Schedule to the Indian
Limitation Act, 1877 (15 of 1877).
Jurisdiction—The
Court has no jurisdiction to hear the suit on the ground that (set forth the
grounds).
On the
........................................................................................day
of a diamond ring was delivered by the defendant to and accepted by the
plaintiff in discharge of the alleged cause of action.
Insolvency—The defendant
has been adjudged an insolvent.
The plaintiff before the
institution of the suit was adjudged an insolvent and the right to sue vested
in the receiver.
Minority—The
defendant was a minor at the time of making the alleged contract.
Payment
into Court—The defendant as to the whole claim (or as to
Rs part of the money claimed, or as the case may be) has paid into Court Rs.
and says that this sum is enough to satisfy the plaintiff's claim (or the part
aforesaid).
Performance
remitted—The performance of the promise alleged was remitted on
the date). Rescission—The contract was rescinded by agreement between the
plaintiff and defendant. Res judicata—The plaintiff's claim is barred by the
decree in suit (give the reference).
Estoppel—The
plaintiff is estopped from denying the truth of (insert statement as to which
estoppel is claimed) because (here state the facts relied on as creating the
estoppel).
Ground
of defence subsequent to institution of suit—Since the institution
of the suit, that is to say, on the...................... day of (set out
facts).
No.
1
DEFENCE
IN SUITS FOR GOODS SOLD AND DELIVERED
(1)
The defendant did not order the goods.
(2)
The goods were not delivered to the
defendant.
(3)
The price was not Rs.
[or]
(4)
(5)
Except as to Rs. , same as 1, 2, 3.
(6)
(7)
the defendant [or A. B., the defendant's
agent] satisfied the claim by payment before suit to the plaintiff [or to C.D.,
the plaintiff's agent] on the day of 20,
(8)
The defendant satisfied the claim by payment
after suit to the plaintiff on the day of 20
No.
2
DEFENCE
IN SUITS ON BONDS
(1)
The bond is not the defendant’s bond.
(2)
The defendant made payment to the plaintiff
on the day according to the condition of the bond.
(3)
The defendant made payment to the plaintiff
after the day named and before suit of the principal and interest mentioned in
the bond.
No.
3
DEFENCE
IN SUITS ON GUARANTEES
(1)
The principal satisfied the claim by payment
before suit.
(2)
The defendant was released by the plaintiff
giving time to the principal debtor in pursuance of a binding agreement.
No.
4
DEFENCE
IN ANY SUITS FOR DEBT
(1)
As to Rs. 200 of the money claimed, the
defendant is entitled to set off for goods sold and delivered by the defendant
to the plaintiff.
Particulars are as follows :
Rs.
1907 January 25th. . . . . .
. . . . . . . . . 150
,, February 1st . . . . . .
. . . . . . . . . . . . . . . . 50
Total 200
(2)
As to the whole [or as to Rs. , part of the
money claimed] the defendant made tender before suit of Rs and has paid the
same into Court.
No.
5
DEFENCE
IN SUITS FOR INJURIES CAUSED BY NEGLIGENT DRIVING
(1)
The defendant denies that the carries
mentioned in the plaint was the defendant's carriage, and that it was under the
charge or control of the defendant's servants. The carriage belonged
to...................... . of.....................Street, Calcutta, livery
stable keepers employed by the defendant to supply him with carriages and
horses and the person under whose charge and control the said carriage was, was
the servant of the said.
(2)
The defendant does not admit that the said
carriage was turned out of Middleton Street either negligently, suddenly or
without warning, or at a rapid or dangerous pace.
(3)
The defendant says the plaintiff might and
could, by the exercise of reasonable care and diligence, have seen the said
carriage approaching him, and avoided any collision with it.
(4)
The defendant does not admit the statements
contained in the third paragraph of the plaint.
No.
6
DEFENCE
IN ALL SUITS FOR WRONGS
(1)
Denial of the several acts [or matters]
complained of.
No.
7
DEFENCE
IN ALL SUITS FOR DETENTION OF GOODS
(1)
The goods were not the property of the
plaintiff.
(2)
The good were detained for a lien to which
the defendant was entitled.
Particulars are as follows:—
1907, May 3rd To carriage of
the goods claimed from Delhi to Calcutta:— 45 maunds at Rs. 2 per
maund.................Rs. 90.
No.
8
DEFENCE
IN SUITS FOR INFRINGEMENT OF COPYRIGHT
(1)
The plaintiff is not the author [assignee,
etc.]
(2)
The book was not registered.
(3)
The defendant did not infringe.
No.
9
DEFENCE
IN SUITS FOR INFRINGEMENT OF TRADE MARK
(1)
The trade mark is not the plaintiff’s.
(2)
The alleged trade mark is not a trade mark.
(3)
The defendant did not infringe.
No.
10
DEFENCE
IN SUITS RELATING TO NUISANCES
(1)
The plaintiff’s lights are not ancient [or
deny his other alleged prescriptive rights].
(2)
The plaintiff’s lights will not be materially
interfered with by the defendant’s buildings.
(3)
The defendant denies that he or his servants
pollute the water [or do what is complained of].
[If the defendant claims the
right by prescription or otherwise to do what is complained of, he must say so,
and must state the grounds of the claim, i.e., whether by prescription, grant
or what.]
(4)
The plaintiff has been guilty of laches of
which the following are particulars:—
1870. Plaintiff 's mill
began to work.
1871. Plaintiff came into
possession.
1883. First complaint.
(5)
As to the plaintiff's claim for damages the
defendant will rely on the above grounds of defence, and says that the acts
complain of have not produced any damage to the plaintiff [If other grounds are
relied on, they must be stated, e.g., limitation as to past damage.]
No.
11
DEFENCE
TO SUIT FOR FORECLOSURE
(1)
The defendant did not execute the mortgage.
(2)
The mortgage was not transferred to the
plaintiff (if more than one transfer is alleged, say which is denied).
(3)
The suit is barred by
article................................................of the Second Schedule
to the Indian
Limitation Act, 1877 (15 of 1877).
(4)
The following payment have been made, viz, :—
(Insert date)— Rs. 1,000
(Insert date)— Rs. 500
(5)
The plaintiff took possession on
the......................of and has received the rents ever since.
(6)
The plaintiff released the debt on the
..........................of.............................................
(7)
The defendant transferred all his interest to
A. B. by a document dated..........
No.
12
DEFENCE
TO SUIT FOR REDEMPTION
(1)
The plaintiff’s right to redeem is barred by
article of the Second Schedule to the 1Indian Limitation Act 1877 (15 of 1877).
(2)
The plaintiff transferred all interest in the
property to A. B.
(3)
The defendant, by a document dated
the....................day of transferred all his interest in the mortgage-debt
and property comprised in the mortgage to A.B.
(4)
The defendant never took possession of the
mortgaged property, or received the rents thereof.
(if the defendant admits
possession for a time only, he should state the time and deny possession beyond
what he admits.)
No.
13
DEFENCE
TO SUIT FOR SPECIFIC PERFORMANCE
(1)
The defendant did not enter into the
agreement.
(2)
A.B. was not the agent of the defendant (if
alleged by plaintiff).
(3)
The plaintiff has not performed the following
conditions—(Conditions).
(4)
The defendant did not—(alleged acts of part
performance).
(5)
The plaintiff's title to the property agreed
to be sold is not such as the defendant is bound to accept by reason of the
following matter—(State why).
(6)
The agreement is uncertain in the following
respects—(State them).
(7)
(or) The plaintiff has been guilty of delay.
(8)
(or) The plaintiff has been guilty of fraud
(or misrepresentation).
(9)
(or) The agreement is unfair.
(10)
(or) The agreement was entered into by
mistake.
(11)
The following are particulars of (7), (8),
(9), (10) (or as the case may be).
(12)
The agreement was rescinded under Conditions
of Sale, No. 11 (or by mutual agreement).
(In cases where damages are
claimed and the defendant disputes his liability to damages, he must deny the
agreement Or the alleged breaches, or show whatever other ground of defence he
intends to rely on, e.g., the Indian
Limitation Act, accord and satisfaction, release, fraud, etc.)
No.
14
DEFENCE
IN ADMINISTRATION SUIT BY PECUNIARY LEGATEE
(1)
A.B. ‘s will contained a charge of debts; he
died insolvent; he was entitled at his death to some immovable property which
the defendant sold and which produced the net sum of Rs , and the testator had
some movable property which the defendant got in, and which produced the net
sum of Rs............
(2)
The defendant applied the whole of the said
sums and the sum of Rs....................... ..........which the defendant received
from rents of the immovable property in the payment of the funeral and
testamentary expenses and some of the debts of the testator.
(3)
The defendant made up his accounts and sent a
copy thereof to the plaintiff on the. Day of...................... 20.........,
and offered to plaintiff free access to the vouchers to verify such accounts,
but he declined to avail himself of the defendant’s offer.
(4)
The defendant submits that the plaintiff
ought to pay the cost of this suit.
No.
15
PROBATE
OF WILL IN SOLEMN FORM
(1)
The said will and codicil of the deceased
were not duly executed according to the provisions of the Indian Succession
Act, 1865
(10 of 1865) [or of the Hindu Wills Act, 18702 (21 of 1870)].
(2)
The deceased at the time the said will and
codicil respectively purport to have been executed, was not of sound mind,
memory and understanding.
(3)
The execution of the said will and, codicil
was obtained by the undue influence of the plaintiff [and others acting with
him whose names are at present unknown to the defendant].
(4)
The execution of the said will and codicil
was obtained by the fraud of the plaintiff, such fraud so far as is within the
defendant’s present knowledge, being [state the nature of the fraud].
(5)
The deceased at the time of the execution of
the said will and codicil did not know and approve the contents thereof [or of
the contents of the residuary clause in the said will, as the case may be].
(6)
The deceased made his true last will, dated
the 1st January, 1873, and thereby appointed the defendant sole executor
thereof.
The defendant claims—
(1)
that the Court will pronounce against the
said will and codicil propounded by the plaintiff ;
(2)
that the Court will decree probate of the
will of the deceased, dated the 1st January, 1873, in solemn form of law.
No.
16
PARTICULARS
(O.6,
r. 5.)
(Title
of suit)
Particulars.—The
following are the particulars of (here state the matters in respect of which
particulars have been ordered) delivered pursuant to the order of the of
(Here set out the
particulars ordered in paragraphs if necessary).
APPENDIX
B
PROCESS
No. 1.
SUMMONS
FOR DISPOSAL OF SUIT
(O.
5, rr.1.5.)
(Title)
To
. [Name, description and
place of residence.]
WHEREAS. . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . has instituted a suit
against you for you are hereby summoned to appear in this Court in person, or
by a pleader duly instructed (and able to answer all material questions
relating to the suit, or who shall be accompanied by some person; able to
answer all such
questions,...............on.................the........................................day.................of........................20.
,at.........................................O’clock in
the................................................ noon, to answer the claim ;
and as the day fixed for your appearance is appointed for the final disposal of
the suit, you must be prepared to produce on that day all the witnesses upon
whose evidence and all the documents upon which you intend to rely in support
of your defence.
Take notice that, in default
of your appearance on the day before mentioned, the suit will be heard and
determined in your absence.
Given under my hand and the
seal of the Court, this..............day of 20
Judge
NOTICE—1. Should you
apprehend your witnesses will not attend of their own accord, you can have a
summons from this Court to compel the attendance of any witness, and the
production of any document that you have a right to call upon the witness to
produce, on applying to the Court and on depositing the necessary expenses.
2. If you admit the claim,
you should pay the money into Court together with the costs of the suit, to
avoid execution of the decree, which may be against your person or property, or
both.
No.
2
SUMMONS
FOR SETTLEMENT OF ISSUES
(O.
5, rr.1. 5.)
(Title)
To . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [Name,
description and place of residence.]
WHEREAS has instituted a
suit against you for……………………………..you are hereby summoned to appear in this
Court in person, or by a pleader duly instructed, and able to answer all
material question relating to the suit, or who shall be accompanied by some person
able to answer all such questions, on
the.........................................................day
of……......................20....................., at O'clock in the noon, to
answer the claim; [and
further you are hereby directed to file on that day a written statement of your
defence and to produce on the said day all documents in your possession or
power upon which you base your defence or claim for set-off or counterclaim,
and where you rely on any other document whether in your possession or power or
not, as evidence in support of your defence or claim for set-off or
counterclaim, you shall enter such documents in a list to be annexed to the
written statement].
Take note that, in default
of your appearance on the day before mentioned, the suit will be heard and
determined in your absence.
GIVEN under my hand and the
seal of the Court, this.............. day of.................. 20 ...........
Judge.
NOTICE—1. Should you
apprehend your witnesses will not attend of their own accord, you can have a
summons from this Court to compel the attendance of any witness, and the
production of any document that you have a right to call on the witness to
produce, on applying to the Court and on depositing the necessary expenses.
2. If you admit the claim, you
should pay the money into Court together with the costs of the suit, to avoid
execution of the decree, which may be against your person or property, or both.
No.
3
SUMMONS
TO APPEAR IN PERSON
(O.
5, r. 3.)
(Title)
To [Name, description and
place of residence.]
WHEREAS. . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . has
instituted a suit against you for...............you are hereby summoned to
appear in this Court in person on the day of ...................... 20........................................at
O’clock in the....................................noon, to answer the claim;
and you are directed to produce on that day all the documents upon which you
intend to rely in support of your defence.
Take notice that, in default
of your appearance on the day before mentioned, the suit will be heard and
determined in your absence.
GIVEN under my hand and the
seal of the Court, this.......................... day of 20
Judge.
[No. 4
SUMMONS
IN A SUMMARY SUIT
(O.
37, r. 2)
(Title)
To…………………………………………………………..
[Name description and place of residence.]
WHEREAS has instituted a
suit against you under Order XXXVII of the Code of Civil Procedure, 1908, for
Rs. and interest, you are hereby summoned to cause and appearance to be entered
for you, within ten days from the service hereof, in default hereof the
plaintiff will be entitled, after the expiration of the said period of ten
days, to obtain a decree for any sum not exceeding the sum of
Rs....................and the sum of Rs for costs, together with such interest,
if any, as the Court may order.
If you cause an appearance
to be entered for you, the plaintiff will thereafter server upon you a summons
for judgment at the hearing of which you will be entitle to move the Court for
leave to defend the suit.
Leave to defend may be
obtained if you satisfy the Court by affidavit or otherwise that there is
defence to the suit on the merits or that it is reasonable that you should be
allowed to defend.
Given under my hand and the
seal of the Court, this............................day
of...........................20...........
Judge. ]
[No. 4A
SUMMONS
FOR JUDGMENT IN A SUMMARY SUIT
(O.
37, r. 3)
(Title)
In
the..............................Court, at..............................Suit
No. of 20
XYZ Plaintiff
Versus
ABC Defendant
Upon reading the affidavit
of the plaintiff the Court makes the following order, namely:—
Let all parties concerned
attend the Court or Judge, as the case may be, on the .....................day
of .................. 20 , at O’clock in the forenoon on the hearing of the
application of the plaintiff that he be at liberty to obtain judgment in this
suit against the defendant (or if against one or some or several, insert names)
for Rs. and for interest and costs.
Date the
......................day of.................. 20 .]
Judge.
No.
5
NOTICE
TO PERSON WHO, THE COURT CONSIDERS, SHOULD BE ADDED AS CO-PLAINTIFF
(O.
1, r. 10)
(Title)
To [Name, description and
place of residence.]
WHEREAS.........................has
instituted a suit against.........................for and whereas it appears
necessary that you should be added as plaintiff in the said suit in order to
enable the Court effectually and completely to adjudicate upon and settle all
the questions involved.
Take notice that you should
on or before the .................. day of 20, signify to this Court whether
you consent to be so added.
Given under my hand and the
seal of the Court, this .................day of 20
Judge.
No.
6
SUMMONS
TO LEGAL REPRESENTATIVE OF A DECEASED DEFENDANT
(O.
22, r. 4)
(Title)
To
WHEREAS the plaintiff
.................... ...........instituted a suit in this Court on the day
of.............../20....against the defendant........ who has since deceased,
and whereas the said plaintiff has made an application to this Court alleging that
you are the legal representative of the said, .. deceased, and desiring that
you be made the defendant in his stead;
You are hereby summoned to
attend in this Court on the…………day of........... ......... ......20......., at
… A.M. to defend the said suit and, in default of your appearance on the day
specified, the said suit will be heard and determined in your absence.
Given under my hand and the
seal of the Court, this .................day of 20
Judge.
No.
7
ORDER
FOR TRANSMISSION OF SUMMONS FOR SERVICE IN THE JURISDICTION OF ANOTHER COURT
(O.
5, r. 21)
(Title)
WHEREAS it is stated that
................................................................................................
defendant in the above suit is at present residing
in..........................................................witness
It is ordered that a summons
returnable on the ....................day of...........................20. , be
forwarded to the ..............Court of for service on the said
defendant/witness with a duplicate of this proceeding.
The court-fee of chargeable
in respect to the summons has been realised on this Court in stamps.
Dated
........................20.........
Judge.
No.
8
ORDER
FOR TRANSMISSION OF SUMMIONS TO BE SERVED ON A PRISONER
(o.
5, r. 25.)
(Title)
To
. . . . . . . . . . . . . .
. . . . . . . . . . . . .
. . . . . . . . . . . . . .
. . . . . . . . . . . . .
The Superintendent of the
Jail
at.....................................................................................................................................................
.............................................................................................................
Under the provisions of
Order V, rule 24, of the Code of Civil Procedure, 1908, a summons in duplicate
is here with forwarded for service on the defendant.................. who
is............... a prisoner in jail, You are requested to cause a copy of the
said summons to be served upon the said defendant and to return the original to
this Court signed by the said defendant, with a statement of service endorsed
thereon by you.
Judge.
No.
9
ORDER
FOR TRANSMISSION OF SUMMONS TO BE SERVED ON A PUBLIC SERVANT OR SOLDIER
(O.
5, rr. 27, 28.)
(Title)
To
UNDER the provisions of
Order V, rule 27 (or 28, as the case may be), of the Code of Civil Procedure,
1908, a summons in duplicate is herewith forwarded for service on the
defendant…………….who is stated to be serving under you. You are requested to
cause a copy of the said summons to be served upon the said defendant and to
return the original to this Court signed by the said defendant, with a
statement of service endorsed thereon by you.
Judge.
No.
10
TO
ACCOMPANY RETURNS OF SUMMONS OF ANOTHER COURT
(O.
5, r. 23.)
(Title)
Read proceeding from the
..................forwarding................ for service on in Suit No................................Of...............20
of that Court.
Read Serving Officer's
endorsement stating that the.....................and proof of the above having
been duly taken by me on the oath of............................
and.................................it is ordered that the. Be returned to the
with a copy of this proceeding.
Judge.
NOTE .—This form will be
applicable to process other than summons, the service of which may have to be
effected in the same manner.
No.
11
AFFIDAVIT
OF PROCESS-SERVER TO ACCOMPANY RETURN OF A SUMMONS OR NOTICE
(O.
5, r. 18.)
(Title)
The affidavit
of......................................, son of
...................................................................................................I
make oath affirm and say as follows :—
(1)
I am a process-server of this Court.
(2)
On the day
of......................................20...........I received a summons /
notice issued by the Court of ...........in Suit No.
.............of............. 20..........., in the said Court, dated the day of
..........20..........., for service on
(3)
The said. was at the time personally known to
me, and I served the said Summons/notice him On the ..........day
of........20........, at about....................O’clock in the ................ her ................noon
at......................by tendering a copy thereof to him and requiring her
His her
Signature to the original
notice
(a)
(b)
(a)
Here state whether the person served signed
or refused to sing the process, and in whose presence.
(b)
Signature of process-server.
or,
(3) The
said........................not being personally known to
me.............accompanied me. To and pointed out to me a person whom he stated
to be the said......., and I served the said summons/notice on Him on the ......................day
of...................20......., at about...............o’clock in the..........
her noon at.....by tendering a copy
thereof to him and requiring him
Signature to the original
summon her notice
(a)
(b)
(a)
Here state whether the person served signed
or refused to sing the process, and in whose presence.
(b)
Signature of process-server.
or,
(3) The said. and the house
in which he ordinarily resides being personally known to me, I went to the said
house, in ................and thereon the .................day, of 19 at
about.......................o’clock in the...............noon , I did not find
the said....................
(a)
(b)
(a)
Enter fully and exactly the manner in which
the process was served, with special reference to Order 5, rules 15 and 17.
(b)
Signature of process-server.
or,
(3)
One...........accompanied me to....................and there pointed out to me
which he said was the house in which......................ordinarily resides. I
did not find the said there.
(a)
(b)
(a)
Enter fully and exactly the manner in which
the process was served, with special reference to Order 5, rules 15 and 17.
(b)
Signature of process-server.
or,
If substituted service has
been ordered, state fully and exactly the manner in which the summons was
served with special reference to the terms of the order for substituted
service.
Sworn……………..by the
said…………………………………………………………………………………… before me affirmed
this......................................................day
of..................20..............
Empowered under section 139
of the Code of Civil Procedure, 1908, to administer the oath to deponents.
No.
12
NOTICE
TO DEPENDANT
(O.
9, r. 6.)
(Title)
To ………………………………….[Name,
description and place of residence.]
WHEREAS this day was fixed
for the hearing of the above suit and a summons was issued to you and the
plaintiff has appeared in this Court and you did not so appear, but from the
return of the Nazir it has been proved to the satisfaction of the Court that
the said summons was served on you but not in sufficient time to enable you to
appear and answer on the day fixed in the said summons;
Notice is hereby given to
you that the hearing of the suit is adjourned this day and that
the................... day of..........................20. is now fixed for the
hearing of the same; in default of your appearance on the day last mentioned
the suit will be heard and determined in your absence.
GIVEN under my hand and the
seal of the Court, this .........................day of ...............
20.......
Judge.
No.
13
SUMMONS
TO WITNESS
(O.
16, rr. 1, 5.)
(Title)
To.........................................................
WHEREAS your attendance is
required
to................................................................................................
on behalf of the. in the above suit, you are hereby required [personally] to
appear before this Court on the. day of ............ 20...........,
at....................O’clock in the forenoon, and to bring with you [or to
send to this Court].
A sum of Rs , being your
travelling and other expenses and subsistence allowance for one day, is
herewith sent. If you fail to comply with this order without lawful excuse, you
will be subject to the consequences of non-attendance laid down in rule 12 of
Order XVI of the Code of Civil Procedure, 1908.
GIVEN under my hand and the
seal of the Court, this............................day
of.....................20...............
Judge.
NOTICE.—(1) If you are
summoned only to produce a document and not to give evidence, you shall be
deemed to have complied with the summons if you cause such document to be
produced in this Court on the day and hour aforesaid.
(2) If you are detained
beyond the day aforesaid, a sum of
Rs........................................will be tendered to you for each
day's attendance beyond the day specified.
No.
14
PROCLAMATION
REQUIRING ATTENDANCE OF WITNESS
(O.
16, r. 10.)
(Title)
To
WHEREAS it appears from the
examination on oath of the serving officer that the summons could not be served
upon the witness in the manner prescribed by law : and whereas it appears that
the evidence of the witness is material, and he absconds and keeps out of the
way for the purpose of evading the service of the summons : This proclamation
is, therefore, under rule 10 of Order XVI of the Code of Civil Procedure, 1908,
issued requiring the attendance of the witness in this Court on
the.....................day of................20.........at..........O'clock in
the forenoon and from day to day until he shall have leave to depart; and if
the witness fails to attend on the day and hour aforesaid he will be dealt with
according to law.
GIVEN under my hand and the
seal of the Court, this ............... day of ..........................
20....
Judge.
No.
15
PROCLAMATION
REQUIRING ATTENDANCE OF WITNESS
(O.
16, r. 10.)
(Title)
To
WHEREAS it appears from the
examination on oath of the serving officer that the summons has been duly
served upon the witness, and whereas it appears that the evidence of the
witness is material and he has failed to attend in compliance with such summons
: This proclamation is, therefore, under rule 10 of Order XVI of the Code of
Civil Procedure, 1908, issued requiring the attendance of the witness in this
Court on the.......day of.............. 20......... at........ O'clock in the
forenoon, and from day to day until he shall have leave to depart; and if the
witness fails to attend on the day and hour aforesaid he will be dealt with
according to law.
GIVEN under my hand and the
seal of the Court, this........................... day of 20
Judge.
No.
16
WARRANT
OF ATTACHMENT OF PROPERTY OF WITNESS
(O.
16, r. 10.)
(Title)
To
The Bailiff of the Court.
WHEREAS the witness cited by
…………………………………………….. has not, after the expiration of the period limited in the
proclamation issued for his attendance, appeared in Court; You are hereby
directed to hold under attachment................... property belonging to the
said witness to the value. of and to submit a return, accompanied with an
inventory thereof, within days.
Given under my hand and the
seal of the Court, this.................................. day of
20........................................
Judge.
No.
17
WARRANT
OF ARREST OF WITNESS
(O.
16, r. 10)
(Title)
To
The Bailiff of the Court.
WHEREAS.................................................................................has
been duly served with a summons but has failed to attend (absconds and keeps
out of the way for the purpose of avoiding service of a summons); You are
hereby ordered to arrest and bring the
said...................................................................before
the Court.
You are further ordered to
return this warrant on or before the ................ day
of........................... 20 with an endorsement certifying the day on and
the manner in which it has been executed, or the reason why it has not been
executed.
Given under my hand and the
seal of the Court, this................... day of 20
Judge.
No.
18
WARANT
OF COMMITTAL
(O.
16, r. 16)
(Title)
To
The Officer in charge of the
Jail at ..........................................
WHEREAS the plaintiff (or
defendant) in the above-named suit has made application to this Court that
security be taken for the appearance of...... give evidence (or to produce a document),
on the day of
.......................................................................................................
20 and whereas the Court has called upon the said. to furnish such security,
which he has failed to do; This is to require you to receive the
said...........into your custody in the civil prison and to produce him before
this Court at……………... on the said day and on such other day or days as may be
hereafter ordered.
GIVEN under my hand and the
seal of the Court, this ................... day of ............... 20
............
Judge.
No.
19
WARRANT
OF COMMITTAL
(O
16, r. 18)
(Title)
To
The Officer in charge of the
Jail at ..................................
WHEREAS , whose attendance
is required before this Court in the above-named case to give evidence or to
produce a document), has been arrested and brought before the Court in custody;
and whereas owing to the absence of the plaintiff (or defendant), the said.
cannot give such evidence (or produce such document); and whereas the Court has
called upon the said to. to-give security for his appearance on
the.............................day of................20
,at....................................which he has failed to do; This is to
require you to receive the said into your custody in the civil prison and to
produce him before this Court at......... on the. Day of 20
GIVEN under my hand and the
seal of the Court, this day of 20
Judge.
APPENDIX
C
DISCOVERY,
INSPECTION AND ADMISSION
No.
1
ORDER
FOR DELIVERY OF INTERROGATORIES
(O.
11, r 1.)
In the Court
of...........................................................
Civil Suit
No.....................of 20
A. B.
................................................................ Plaintiff,
against
C.D.E.F. and G.H ...…....….
Defendants.
Upon hearing
........................ and upon reading the affidavit of .................
filed the day of…………20……….; It is ordered that the………..be at liberty to deliver
to the………
Interrogatories in writing,
and that the said do answer the interrogatories as prescribed by Order XI, rule
8, and that the costs of this application be…………..
No.
2
INTERROGATORIES
(O.
11, r. 4.)
(Title
as in No. 1, supra)
Interrogatories on behalf of
the above-named [Plaintiff or defendant C. D.] for the examination of the above-named
[defendants E.F. and G. H. or Plaintiff].
(1)
Did not, etc.
(2)
Has not, etc.
etc., etc., etc.
[The defendant E.F. is
required to answer the interrogatories numbered ]
[The defendant G. H. is
required to answer the interrogatories numbered ]
No.
3
ANSWER
TO INTERROGATORIES
(O.
11, r. 9.)
(Title
as in No. 1, supra)
The answer of the
above-named defendant E. F., to the interrogatories for his examination by the
above-named plaintiff.
In answer of the said
interrogatories, I, the above-named E. F., make oath and say as follows: —
(1)
(2)
Enter answers to interrogatories in
paragraphs numbered consecutively.
(3)
I object to answer the interrogatories
numbered on the ground that [state grounds of objection].
No.
4
ORDERFOR
AFFIDAVIT AS TODOCUMENTS
(O.
11, r. 12.)
(Title
as in No. 1, supra)
Upon hearing………………; It is
ordered that the………..do within… form the date of this order, answer on
affidavit stating which documents are or have been in his possession or power
relating to the matter in question in this suit, and that the costs of this
application be…………………… .
No.
5
AFFIDAVIT
AS TO DOCUMENTS
(O.
11, r. 13.)
(Title
as in No. 1, supra)
I, the above-named defendant
C. D., make oath and say as follows : —
(1)
have in my possession or power the documents
relating to the matters in question in this suit set forth in the first and
second parts of the first schedule hereto.
(2)
object to produce the said documents set
forth in the second part of the first schedule hereto [stale grounds of
objection]
(3)
I have had but have not now, in my possession
or power the documents relating to the matters in question in this suit set
forth in the second schedule hereto.
(4)
The last-mentioned documents were last in my
possession or power on. [State when and what has become of them and in whose possession
they now are].
(5)
According to the best of my knowledge,
information and belief I have not now, and never had, in my possession, custody
or power, or in the possession, custody or power of my pleader or agent, or in
the possession custody or power of any other person on my behalf, any account,
book of account, voucher, receipt, letter memorandum, paper or writing, or any
copy of or extract from any such document, or any other documents whatsoever,
relating to the matters in question in this suit or any of them, or wherein any
entry has been made relative to such matters or any of them, other than and
except the documents set forth in the said first and second schedules hereto.
No.
6
ORDER
TO PRODUCE DOCUMENTS FOR INSPECTION
(O.
11, r. 14.)
(Title
as in No. 1, supra)
Upon hearing………………and upon
reading the affidavit of……………….. filed the……………… day of……………20……………; It is
ordered that the………………..do, at all reasonable times, on reasonable notice,
produce at…………………., situate at , the following documents, namely,………………, and
that the……………be at liberty to inspect and produce the documents so produced,
and to make notices of their contents. In the meantime, it is ordered that all
further proceedings be stayed and that the costs of this application
be……………………….
No.
7
NOTICE
TO PRODUCE DOCUMENTS
(O.
11, r. 16.)
(Title
as in No. 1, supra)
Take notice that the
[plaintiff or defendant] requires you to produce for his inspection the
following documents referred to in your [plaint or written statement or
affidavit, dated the… day of …………….20………… ].
[Describe
documents required.]
X. Y, pleader for
the…………..
To Z., pleader for the………..
No.
8
NOTICE
TO INSPECT DOCUMENTS
(O.
11, r. 17.)
(Title
as in No. 1, supra)
Take notice that you can
inspect the documents mentioned in your notice of the day Of……………..20………..
[except the documents numbered ……………….in that notice insert place of
inspection] on Thursday next, the instant, between the hours of 12 and 4
O’clock.
Or, that the [plaintiff or
defendant] objects to giving you inspection of documents mentioned in your
notice of the day of………..20 , on the ground that [state the ground].
No.
9
NOTICE
TO ADMIT DOCUMENTS
(O.
12, r. 3.)
(Title
as in No. 1, supra)
Take notice that the
plaintiff [or defendant] in this suit proposes to adduce in evidence the
several documents hereunder specified, and that the same may be inspected by
the defendant [or plaintiff], his pleader or agent………... at…………on…………between
the hours of…………………..; and the defendant [or plaintiff] is hereby required,
within forty-eight hours from the last-mentioned hour, to admit that such of
the said documents as are specified to be originals were respectively written,
signed or executed, as they purport respectively to have been; that such as are
specified as copies are true copies; and such documents as are stated to have
been served, sent or delivered were so served, sent or delivered, respectively,
saving all just exceptions to the admissibility of all such documents as
evidence in this suit.
G.H. pleader [as
agent] for plaintiff [or defendant].
To E.F., pleader [or agent]
for defendant [or plaintiff].
[Here describe the documents
and specify as to each document whether it is original or a copy].
No.
10
NOTICE
TO ADMIT FACTS
(O.
12, r. 5.)
(Title
as in No. 1, supra)
Take notice that the
plaintiff [or defendant] in this suit requires the defendant [or plaintiff] to
admit, for the purposes of this suit only, the several facts respectively
hereunder specified; and the defendant [or plaintiff] is hereby required,
within six days from the service of this notice, to admit the said several
facts, saving all just exceptions to the admissibility of such facts as
evidence in this suit.
G.H. pleader [or
agent] for plaintiff [or defendant].
To E.F., pleader [or agent]
for defendant [or plaintiff].
The facts, the admission of
which is required, are—
(1)
That M. died on the 1st January, 1890.
(2)
That he died intestate.
(3)
That N. was his only lawful son.
(4)
That O. died on the 1st April, 1896.
(5)
That O. was never married.
No.
11
ADMISSION
OF FACTS PURSUANT TO NOTICE
(O.
12, r. 5.)
(Title
as in No. 1, supra)
The defendant [or plaintiff]
in this suit, for the purposes of this suit only, hereby admits the several
facts respectively hereunder specified, subject to the qualifications or
limitations, if any, hereunder specified, saving all just exceptions to the
admissibility of any such facts, or any of them, as evidence in this suit:
Provided that this admission
is made for the purposes of this suit only, and is not an admission to be used
against the defendant [or plaintiff] on any other occasion or by any one other
than the plaintiff [or defendant, or party requiring the admission].
E. F., pleader [or
agent] for defendant [or plaintiff].
To G. H., pleader [or agent]
for plaintiff [or defendant].
|
Facts
admitted
|
Qualifications
or limitations, if any, subject to which they are admitted
|
|
1.
That M. died on the 1st January, 1890…..
|
1.
|
|
2.
That he died intestate……………………...
|
2.
|
|
3.
That N. was his lawful son ……………….
|
3.
But not that he was his only lawful son.
|
|
4.
That O. died……………………………….
|
4.
But not that he died on the 1st April, 1896.
|
|
5.
That O. was never married……………….
|
5.
...................................................................
|
No.
12
NOTICE
TO PRODUCE (GENERALFORM)
(O.
12, r. 8.)
(Title
as in No. 1, supra)
Take notice that you are
hereby required to produce and show to the Court at the first hearing of this
suit, all books, papers, letters, copies of letters and other writings and
documents in your custody, possession or power, containing any entry,
memorandum or minute relating to the matters in question in this suit, and
particularly.
G. H. pleader [or
agent] for plaintiff [or defendant].
To E. F. pleader or agent]
for defendant [or plaintiff].
APPENDIX
D
DECREES
No.
1
DECREE
IN ORIGINAL SUIT
(O.
20, rr. 6,7.)
(Title)
Claim for
........................................................................................................................................
THIS suit coming on this day
for final disposal before in the presence of
....................................... for the plaintiff and of for the
defendant, it is ordered and decreed that
.......................................... and that the sum of Rs be paid by
the....................................... to the on account of the costs of
this suit, with interest thereon at the rate of per cent. per annum from this
date to date of realization.
Given under my hand and the
seal of the Court, this..................... day of
...................................20...
Judge.
Costs
of Suit
|
Plaintiff
|
|
|
|
Defendant
|
|
|
|
|
|
Rs.
|
A.
|
P.
|
|
Rs.
|
A.
|
P.
|
|
1.
Stamp for plaint………..
|
|
|
|
Stamp
for power……………...
|
|
|
|
|
2.
Do. for power……………
|
|
|
|
Do.
for petition………
|
|
|
|
|
3.
Do. for exhibits………….
|
|
|
|
Pleader’s
fee………….
|
|
|
|
|
4.
Pleader’s fee on Rs. .....
|
|
|
|
Subsistence
for witnesses…
|
|
|
|
|
5.
Subsistence for witnesses..
|
|
|
|
Service
of process……….
|
|
|
|
|
6.
Commissioner’s fee……
|
|
|
|
Commissioner’s
fee………..
|
|
|
|
|
7.
Service of process……..
|
|
|
|
|
|
|
|
|
Total
|
|
|
|
Total
|
|
|
|
No.
2
SIMPLE
MONEY DECREE
(Section
34)
(Title)
Claim
for......................................................................................................................................................
THIS suit coming on
this........................day for final disposal before..........in the presence
of ..............................for the plaintiff and of.................for
the defendant; It is ordered that the. Do pay to the.................. the sum
of Rs................ with interest thereon at the rate of per cent. per annum
from......................................to the date of realization of the
said sum and do also pay Rs..................... , the costs of this suit, with
interest thereon at the rate of per cent. per annum from this date to the date
of realization.
Given under my hand and the
seal of the Court, this........................... day of 20
Judge.
Costs
of Suit
|
Plaintiff
|
Defendant
|
|
|
Rs.
|
A.
|
P.
|
|
Rs.
|
A.
|
P.
|
|
1.
Stamp for plaint………..
|
|
|
|
Stamp
for power……………...
|
|
|
|
|
2.
Do. for power……………
|
|
|
|
Do.
for petition………
|
|
|
|
|
3.
Do. for exhibits………….
|
|
|
|
Pleader’s
fee………….
|
|
|
|
|
4.
Pleader’s fee on Rs. .....
|
|
|
|
Subsistence
for witnesses…
|
|
|
|
|
5.
Subsistence for witnesses..
|
|
|
|
Service
of process……….
|
|
|
|
|
6.
Commissioner’s fee……
|
|
|
|
Commissioner’s
fee………..
|
|
|
|
|
7.
Service of process……..
|
|
|
|
|
|
|
|
|
Total
|
|
|
|
Total
|
|
|
|
[No. 3
PRELIMINARY
DECREE FOR FORECLOSURE
(Order
XXXIV, rule 2.—Where accounts are directed to be taken.)
(Title)
(1)
This suit coming on
this.................................day, etc.; It is hereby ordered and
decreed that it be referred to. as the Commissioner to take the accounts
following:—
(i) an account of what is due on this date to the
plaintiff for principal and interest on his mortgage mentioned in the plaint
(such interest to be computed at the rate payable on the principal or where no
such rate is fixed, at six per cent. per annum or at such rate as the Court
deems reasonable);
(ii)
an account of the income of the
mortgaged property received up to this date by the plaintiff or by any other
person by the order or for the use of the plaintiff or which without the wilful
default of the plaintiff or such person might have been so received;
(iii)
an account of all sums of money properly
incurred by the plaintiff up to this date for costs, charges and expenses
(other than the costs of the suit) in respect of the mortgage-security,
together with interest thereon (such interest to be computed at the rate agreed
between the parties, or, failing such rate, at the same rate as is payable on
the principal, or, failing both such rates, at nine per cent. per annum);
(iv)
an account of any loss or damage caused
to the mortgaged property before this date by any act or omission of the
plaintiff which is destructive of, or permanently injurious to, the property or
by his failure to perform any of the duties imposed upon him by any law for the
time being in force or by the terms of the mortgage-deed.
(2)
And it is hereby further ordered and decreed
that any amount received under clause (ii) or adjudged due under clause (iv)
above, together with interest thereon, shall first be adjusted against any sums
paid by the plaintiff under clause (iii) together with interest thereon, and
the balance, if any, shall be added to the mortgage-money or, as the case may
be, debited in reduction of the amount due to the plaintiff on account of
interest on the principal sum adjudged due, and thereafter in reduction or
discharge of the principal.
(3)
And it is hereby further ordered that the
said Commissioner shall present the account to this Court with all convenient
despatch after making all just allowances on or before
the..............................................................day
of........... and that upon such report of the Commissioner being received, it
shall be confirmed and countersigned, subject to such modification as may be
necessary after consideration of such objections as the parties to the suit may
make.
(4)
And it is hereby further ordered and decreed—
(i) that the defendant do pay into Court on or
before the................................. day of , or any later date up to
which time for payment may be extended by the Court, such sum as the Court
shall fined due, and the sum of Rs. for the costs of the suit awarded to the
plaintiff.
(ii)
that, on such payment and on payment
thereafter before such date as the Court may fix of such amount as the Court
may adjudge due in respect of such costs of the suit and such costs, charges
and expenses as may be payable under rule 10, together with such subsequent
interest as may be payable under rule 11, of Order XXXIV of the First Schedule
to the Code of Civil Procedure, 1908, the plaintiff shall bring into Court all
documents in his possession or power relating to the mortgaged property in the
plaint mentioned, and all such documents shall be delivered over to the defendant,
or to such person as he appoints, and the plaintiff shall, if so required,
re-convey or re-transfer the said property free from the said mortgage and
clear of and from all incumbrances created by the plaintiff-or any person
claiming under him or any person under whom he claims and free from all
liability whatsoever or arising from the mortgage or this suit and shall, if so
required, deliver up to the defendant quiet and peaceable possession of the
said property.
(5)
And it is hereby further ordered and decreed
that, in default of payment as aforesaid, the plaintiff shall be at liberty to
apply to the Court for a final decree that the defendant shall thenceforth
stand absolutely debarred and foreclosed of and from all right to redeem the
mortgaged property described in the schedule annexed hereto and shall, if so
required, deliver up to the plaintiff quiet and peaceable possession of the
said property; and that the parties shall be at liberty to apply to the Court
from time to time as they may have occasion, and on such application or
otherwise the Court may give such directions as it thinks fit.
Schedule
Description
of the mortgaged property]
[No. 3A
PRELIMINARY
DECREE FOR FORECLOSURE
(Order
XXXIV, rule 2.—Where the Court declares the amount due.)
(Title)
(1)
This suit coming on this. day, etc.; It is
hereby declared that the amount due to the plaintiff on his mortgage mentioned
in the plaint calculated up to this day of...................... is the sum of
Rs......................... for principal, the sum of Rs....................
for interest on the said principal, the sum of Rs. for costs, charges and
expenses (other than the costs of the suit) properly incurred by the plaintiff
in respect of the mortgage-security, together with interest thereon, and the
sum of Rs........ for the costs of this suit awarded to the plaintiff, making
in all sum of Rs............
(2)
And it is hereby ordered and decreed as
follows:—
(i)
that the defendant do pay into Court on or
before the....................................day of or any later date up to
which time for payment may be extended by the Court of the said sum of Rs……… ,
(ii)
that, on such payment and on payment
thereafter before such date as the Court may fix of such amount as the Court
may adjudge due in respect of such costs of the suit and such costs, charges
and expenses as may be payable under rule 10, together with such subsequent
interest as may be payable under rule 11, of Order XXXIV of the First Schedule
to the Code of Civil Procedure, 1908 (5 of 1908), the plaintiff shall bring
into Court all documents in his possession or power relating to the mortgaged
property in the plaint mentioned, and all such documents shall be delivered
over to the defendant, or to such person as he appoints, and the plaintiff
shall, if so required, re-convey or re-transfer the said property free from the
said mortgage and clear of and from all incumbrances created by the plaintiff
or any person claiming under him or any person under whom he claims and free from
all liability whatsoever arising from the mortgage or this suit and shall, if
so required, deliver up to the defendant quiet and peaceable possession of the
said property.
(3)
And it is hereby further ordered and decreed
that, in default of payment as aforesaid, the plaintiff may apply to the Court
for a final decree that the defendant shall thenceforth stand absolutely
debarred and foreclosed of and from all right to redeem the mortgaged property
described in the Schedule annexed hereto and shall, if so required, deliver up
to the plaintiff quiet and peaceable possession of the said property; and that
the parties shall be at liberty to apply to the Court from time to time as they
may have occasion, and on such application or otherwise the Court may give such
directions as it thinks fit.
Schedule
Description
of the mortgaged property]
[No. 4
FINAL
DECREE FOR FORECLOSURE
(Order
XXXIV, rule 3.)
(Title)
Upon reading the preliminary
decree passed in this suit on the……… day of................................... and
further orders (if any) dated the…………..day of…………......and the application of
the plaintiff dated the……………day of…………..........for a final decree and after
hearing the parties and it appearing that the payment directed by the said
decree and orders has not been made by the defendant or any person on his
behalf or any other person entitled to redeem the said mortgage.
It is hereby ordered and
decreed that the defendant and all persons claiming through or under him be and
they are hereby absolutely debarred and foreclosed of and from all right of
redemption of and in the property in the aforesaid preliminary decree
mentioned; [and
(if the defendant be in possession of the said mortgaged property) that the
defendant shall deliver to the plaintiff quiet and peaceable possession of the
said mortgaged property].
2. And it is hereby further
declared that the whole of the liability whatsoever of the defendant up to this
day arising from the said mortgage mentioned in the plaint or from this suit is
hereby discharged and extinguished.
Schedule
(Description
of the Mortgage Property).]
[No. 5
PRELIMINARY
DECREE FOR SALE
(Order
XXXIV, rule 4.—Where accounts are directed to be taken.)
(Title)
(1)
This suit coming on
this....................................day, etc; It is hereby ordered and
decreed that it be referred to. as the Commissioner to take the accounts
following:—
(i)
an account of what is due on this date to the
plaintiff for principal and interest on his mortgage mentioned in the plaint
(such interest to be computed at the rate payable on the principal or where no
such rate is fixed, at six per cent. per annum or at such rate as the Court
deems reasonable);
(ii)
an account of the income of the mortgaged
property received up to this date by the plaintiff or by any other person by
the order or for the use of the plaintiff or which without the wilful default
of the plaintiff or such person might have been so received;
(iii)
an account of all sums of money properly
incurred by the plaintiff up to this date for costs, charges and expenses
(other than the costs of the suit) in respect of the mortgage-security,
together with interest thereon (such interest to be computed at the rate agreed
between the parties, or, failing such rate, at the same rate as is payable on
the principal, or, failing both such rates, at nine per cent. per annum);
(iv)
an account of any loss or damage caused to
the mortgaged property before this date by any act or omission of the plaintiff
which is destructive of, or permanently injurious to, the property or by his
failure to perform any of the duties imposed upon him by any law for the time
being in force or by the terms of the mortgage-deed.
(2)
And it is hereby further ordered and decreed
that any amount received under clause (ii) or adjudged due under clause (iv)
above, together with interest thereon, shall first be adjusted against any sums
paid by the plaintiff under clause (iii), together with interest thereon, and
the balance, if any, shall be added to the mortgage-money or, as the case may
be, be debited in reduction of the amount due to the plaintiff on account of
interest on the principal sum adjudged due and thereafter in reduction or
discharge of the principal.
(3)
And it is hereby further ordered that the
said Commissioner shall present the account to this Court with all convenient
despatch after making all just allowances on or before the...............day of
, and that upon such report of the Commissioner being received, it shall be
confirmed and countersigned, subject to such modification as may be necessary
after consideration of such objections as the parties to the suit may make.
(4)
And it is hereby further ordered and decreed—
(i)
that the defendant do pay into Court on or
before the day of or any later date up to which time for payment may be extended
by the Court, such sum as the Court shall find due and the sum of Rs. for the
costs of the suit awarded to the plaintiff;
(ii)
that on such payment and on payment
thereafter before such date as the Court may fix of such amount as the Court
may adjudge due in respect of such costs of the suit, and such costs, charges
and expenses as may be payable under rule 10, together with such subsequent
interest as may be payable under rule 11, of Order XXXIV of the First Schedule
to the Code of Civil Procedure, 1908, the plaintiff shall bring into Court all
documents in his possession or power relating to the mortgaged property in the
plaint mentioned, and all such documents shall be delivered over to the
defendant, or to such person as he appoints, and the plaintiff shall, if so
required, re-convey or re-transfer the said property free from the mortgage and
clear of and from all incumbrances created by the plaintiff or any person
claiming under him or any person under whom he claims and shall, if so
required, deliver up to the defendant quite and peaceable possession of the
said property.
(5)
And it is hereby further ordered and decreed
that, in default of payment as aforesaid, the plaintiff may apply to the Court
for a final decree for the sale of the mortgaged property; and on such
application being made the mortgaged property or a sufficient part thereof
shall be directed to be sold; and for the purposes of such sale the plaintiff
shall produce before the Court, or such officer as it appoints, all documents
in his possession or power relating to the mortgaged property.
(6)
And it is hereby further ordered and decreed
that the money realised by such sale shall be paid into Court and shall be duly
applied (after deduction therefrom of the expenses of the sale) in payment of the
amount payable to the plaintiff under this decree and under any further orders
that may be passed in this suit and in payment of any amount which the Court
may adjudge due to the plaintiff in respect of such costs of the suit, and such
costs, charges and expenses as may be payable under rule 10, together with such
subsequent interest as may be payable under rule 11, of Order XXXIV of the
First Schedule to the Code of Civil Procedure, 1908, and that the balance, if
any, shall be paid to the defendant or other persons entitled to receive the
same.
(7)
And it is hereby further ordered and decreed
that, if the money realised by such sale shall not be sufficient or payment in
full of the amount payable to the plaintiff as aforesaid, the plaintiff shall
be at liberty (where such remedy is open to him under the terms of his mortgage
and is not barred by any law for the time being in force) to apply for a
personal decree against the defendant for the amount of the balance; and that
the parties are at liberty to apply to the Court from time to time as they may
have occasion, and on such application or otherwise the Court may give such
directions as it thinks fit.
Schedule
Description
of the mortgaged property.]
[No. 5A
PRELIMINARY
DECREE FOR SALE
(Order
XXXIV, rule 4.—When the Court declares the amount due.)
(Title)
(1)
This suit coming on this. day, etc.; It is
hereby declared that the amount due to the plaintiff on the mortgage mentioned
in the plaint calculated up to this.................... day of is the sum of Rs.................
for principal, the sum of Rs for interest on the said principal, the sum of Rs.
for costs, charges and expenses (other than the costs of the suit) properly
incurred by the plaintiff in respect of the mortgage-security, together with interest
thereon, and the sum of Rs..............................for the costs of the
suit awarded to the plaintiff, making in all the sum of Rs............
(2)
And it is hereby ordered and decreed as
follows:—
(i)
that the defendant do pay into Court on or
before the............... day of............................ or any later date
up to which time for payment may be extended by the Court, the said sum of Rs.
;
(ii)
that on such payment and on payment
thereafter before such date as the Court may fix of such amount as the Court
may adjudge due in respect of such costs of the suit and such costs, charges
and expenses as may be payable under rule 10, together with such subsequent
interest as may be payable under rule 11, of Order XXXIV of the First Schedule
to the Code of Civil Procedure, 1908, the plaintiff shall bring into Court all
documents in his possession or power relating to the mortgaged property in the
plaint mentioned, and all such documents shall be delivered over to the
defendant, or to such person as he appoints, and the plaintiff shall, if so
required, re-convey or re-transfer the said property free from the said
mortgage and clear of and from all incumbrances created by the plaintiff or any
person claiming under him or any person under whom he claims and shall, if so
required, deliver up to the defendant quite and peaceable possession of the
said property.
(3)
And it is hereby further ordered and decreed
that, in default of payment as aforesaid, the plaintiff may apply to the Court
for a final decree for the sale of the mortgaged property; and on such
application being made, the mortgaged property or a sufficient part thereof
shall be directed to be sold; and for the purposes of such sale the plaintiff
shall produce before the Court or such officer as it appoints all documents in
his possession or power relating to the mortgaged property.
(4)
And it is hereby further ordered and decreed
that the money realised by such sale shall be paid into Court and shall be duly
applied (after deduction herefrom of the expenses of the sale) in payment of
the amount payable to the plaintiff under this decree and under any further
orders that may be passed in this suit and in payment of any amount which the
Court may adjudge due to the plaintiff in respect of such costs of the suit,
and such costs, charges and expenses as may be payable under rule 10, together
with such subsequent interest as may be payable under rule 11, of Order XXXIV
of the First Schedule to the Code of Civil Procedure, 1908, and that the
balance, if any, shall be paid to the defendant or other persons entitled to
receive the same.
(5)
And it is hereby further ordered and decreed
that, if the money realised by such sale shall not be sufficient or payment in
full of the amount payable to the plaintiff as aforesaid, the plaintiff shall
be at liberty (where such remedy is open to him under the terms of his mortgage
and is not barred by any law for the time being in force) to apply for a
personal decree against the defendant for the amount of the balance; and that
the parties are at liberty to apply to the Court from time to time as they may
have occasion, and on such application or otherwise the Court may give such
directions as it thinks fit.
Schedule
Description
of the mortgaged property.]
[No. 6
FINAL
DECREE FOR SALE
(Order
XXXIV, rule 5.)
(Title)
Upon reading the preliminary
decree passed in this suit on the.........day of and further orders
(if any) dated the ........
day of........ and the application of the plaintiff dated the........day of for
a final decree and after hearing the parties and it appearing that the payment
directed by the said decree and orders has not been made by the defendant or
any person on his behalf or any other person entitled to redeem the mortgage.
It is hereby ordered and
decreed that the mortgaged property in the aforesaid preliminary decree
mentioned or a sufficient part thereof be sold and that for the purposes of
such sale the plaintiff shall produce before the Court or such officer as it
appoints all documents in his possession or power relating to the mortgaged
property.
2. And it is hereby further
ordered and decreed that the money realised by such sale shall be paid into the
Court and shall be duly applied (after deduction therefrom of the expenses of
the sale) in payment of the amount payable to the plaintiff under the aforesaid
preliminary decree and under any further orders that may have been passed in
this suit and in payment of any amount which the Court may have adjudged due to
the plaintiff for such costs of the suit including the costs of this
application and such costs, charges and expenses as may be payable under rule
10, together with such subsequent interest as may be payable under rule 11, of
Order XXXIV of the First Schedule to the Code of Civil Procedure, 1908, and
that the balance, if any, shall be paid to the defendant or other persons
entitled to receive the same.]
[No. 7
PRELIMINARY
DECREE FOR REDEMPTION WHERE ON DEFAULT OF PAYMENT BY MORTGAGOR A DECREE FOR
FORECLOSURE IS PASSED
(Order
XXXIV, rule 7.—Where accounts are directed to be taken.)
(Title)
(1)
This suit coming on this......... day, etc.;
It is hereby ordered and decreed that it be referred to. as the Commissioner to
take the account following:—
(i)
an account of what is due on this date to the
defendant for principal and interest on the mortgage mentioned in the plaint
(such interest to be computed at the rate payable on the principal or where no
such rate is fixed, at six per cent. per annum or at such rate as the Court
deems reasonable);
(ii)
an account of the income of the mortgaged
property received up to this date by the defendant or by any other person by
order or for the use of the defendant or which without the wilful default of
the defendant or such person might have been so received;
(iii)
an account of all sums of money property
incurred by the defendant up to this date for costs, charges and expenses
(other than the costs of the suit) in respect of the mortgage-security,
together with interest thereon (such interest to be computed at the rate agreed
between the parties, or failing such rate, at the same rate as is payable on
the principal, or, failing both such rates, at nine per cent. per annum);
(iv)
an account of any loss or damage caused to
the mortgaged property before this date by any act or omission of the defendant
which is destructive of, or permanently injurious to, the property or by his
failure to perform any of the duties imposed upon him by any law for the time
being in force or by the terms of the mortgage-deed.
(2)
It is hereby further ordered and decreed that
any amount received under clause (ii) or adjudged due under clause (iv) above
together with interest thereon, shall be adjusted against any sums paid by the
defendant under clause (iii) together with interest thereon, and the balance,
if any, shall be added to the mortgage-money or, as the case may be, be debited
in reduction of the amount due to the defendant on account of interest on the
principal sum adjudged due and thereafter in reduction or discharge of the
principal.
(3)
And it is hereby further ordered that the
said Commissioner shall present the account to this Court with all convenient
despatch after making all just allowances on or before the day of , and that
upon such report of the Commissioner being received, it shall be confirmed and
countersigned, subject to such modification as may be necessary after
consideration of such objections as the parties to the suit may make.
(4)
And it is hereby further ordered and decreed—
(i)
that the plaintiff do pay into Court on or
before the ......... day of , or any later date up to which time for payment
may be extended by the Court, such sum as the Court shall find due and the sum
of Rs. for the costs of the suit awarded to the defendant;
(ii)
that, on such payment, and on payment
thereafter before such date as the Court may fix of such amount as the Court
may adjudge due in respect of such costs of the suit, and such costs, charges
and expenses as may be payable under rule 10, together with such subsequent
interest as may be payable under rule 11, of Order XXXIV of the First Schedule
to the Code of Civil Procedure, 1908, the defendant shall bring into Court all
documents in his possession or power relating to the mortgaged property, in the
plaint mentioned, and all such documents shall be delivered over to the
plaintiff, or to such person as he appoints, and the defendant shall, if so
required, re-convey or re-transfer the said property free from the said
mortgage and clear of and from all in-cumbrances created by the defendant or
any person claiming under him or any person under whom he claims and free from
all liability whatsoever arising from the mortgage or this suit and shall, if
so required, deliver up to the plaintiff quiet and peaceable possession of the
said property.
(5)
And it is hereby further ordered and decreed
that, in default of payment as aforesaid, the defendant shall be at liberty to
apply to the Court for a final decree that the plaintiff shall thenceforth
stand absolutely debarred and foreclosed of and from all right to redeem the mortgaged
property described in the Schedule annexed hereto and shall, if so required,
deliver up to the defendant quiet and peaceable possession of the said
property; and that the parties shall be at liberty to apply to the Court from
time to time as they may have occasion, and on such application or otherwise
the Court may give such directions as it thinks fit.
Schedule
Description
of the mortgaged property]
[No. 7A
PRELIMINARY
DECREE FOR REDEMPTION WHERE ON DEFAULT OF PAYMENT BY MORTGAGOR DECREE A DECREE
FOR SALE IS PASSED
(Order
XXXIV, rule 7.—Where accounts are directed to be taken.)
(Title)
(1)
This suit coming on this .........day, etc.;
It is hereby ordered and decreed that it be referred to as the Commissioner to
take the accounts following :—
(i)
an account of what is due on this date to the
defendant for principal and interest on the mortgage mentioned in the plaint
(such interest to be computed at the rate payable on the principal or where no
such rate is fixed, at six per cent. per annum or at such rate as the Court
deems reasonable);
(ii)
an account of the income of the mortgaged
property received up to this date by the defendant or by any other person by
the order or for the use of the defendant or which without the wilful default
of the defendant or such person might have been so received;
(iii)
an account of all sums of money property
incurred by the defendant up to this date for costs, charges and expenses
(other than the costs of the suit) in respect of the mortgage-security,
together with interest thereon (such interest to be computed at the rate agreed
between the parties, or failing such rate, at the same rate as is payable on
the principal, or, failing both such rates, at nine per cent. per annum);
(iv)
an account of any loss or damage caused to
the mortgaged property before this date by any act or omission of the defendant
which is destructive of, or permanently injurious to, the property or by his
failure to perform any of the duties imposed upon him by any law for the time
being in force or by the terms of the mortgage-deed.
(2)
And it is hereby further ordered and decreed
that any amount received under clause (ii) or adjudged due under clause (iv)
above, together with interest thereon, shall first be adjusted against any sums
paid by the defendant under clause (iii) together with interest thereon, and
the balance, if any, shall be added to the mortgage-money, or, as the case may
be, be debited in reduction of the amount due to the defendant on account of
interest on the principal sum adjudged due and thereafter in reduction or
discharge of the principal.
(3)
And it is hereby further ordered that the
said Commissioner shall present the account to this Court with all convenient
despatch after making all just allowances on or before the day of , and that,
upon such report of the Commissioner being received, it shall be confirmed and
countersigned, subject to such modification as may be necessary after
consideration of such objections as the parties to the suit may make.
(4)
And it is hereby further ordered and decreed—
(i)
that the plaintiff do pay into Court on or
before the ………………. day of or any later date up to which time for payment may be
extended by the Court, such sum as the Court shall find due and the sum of Rs.
for the costs of the suit awarded to the defendant;
(ii)
that, or such payment and on payment
thereafter before such date as the Court may fix of such amount as the Court
may adjudge due in respect of such costs of the suit and such costs, charges
and expenses as may be payable under rule 10, together with such subsequent
interest as may be payable under rule 11, of Order XXXIV of the First Schedule
to the Code of Civil Procedure, 1908, the defendant shall bring into Court all
documents in his possession or power relating to the mortgaged property in the
plaint mentioned, and all such documents shall be delivered over to the
plaintiff, or to such person as he appoints, and the defendant shall, if so
required, re-convey or re-transfer the said property free from the said
mortgage and clear of and from all incumbrances created by the defendant or any
person claiming under him or any person under whom the claims and shall, if so
required, deliver up to the plaintiff quiet and peaceable possession of the
said property.
(5)
And it is hereby further ordered and decreed
that, in default of payment as aforesaid, the defendant may apply to the Court
for a final decree for the sale of the mortgaged property; and on such
application being made, the mortgaged property or a sufficient part thereof
shall be directed to be sold; and for the purposes of such sale the defendant
shall produce before the Court or such officer as it appoints, all documents in
his possession of power relating to the mortgaged property.
(6)
And it is hereby further ordered and decreed
that the money realised by such sale shall be paid into Court and shall be duly
applied (after deduction therefrom of the expenses of the sale) in payment of
the amount payable to the defendant under this decree and under any further
orders that may be passed in his suit and in payment of any amount which the
Court may adjudge due to the defendant in respect of such costs of the suit and
such costs, charges and expenses as may be payable under rule 10, together with
such subsequent interest as may be payable under rule 11, of Order XXXIV of the
First Schedule to the Code of Civil Procedure, 1908, and that the balance, if
any, shall be paid to the plaintiff or other persons entitled to receive the
same.
(7)
And it is hereby further ordered and decreed
that, if the money realised by such sale shall not be sufficient for payment in
full of the amount payable to the defendant as aforesaid, the defendant shall
be at liberty (where such remedy is open to him under the terms of his mortgage
and is not barred by any law for the time being in force) to apply for a
personal decree against the plaintiff for the amount of the balance; and the
parties are at liberty to apply to the Court from time to time as they may have
occasion, and on such application or otherwise the Court may give such directions
as it thinks fit.
Schedule
(Description
of the mortgaged property).]
[No. 7B
PRELIMINARY
DECREE FOR REDEMPTION WHERE ON DEFAULT OF PAYMENT BY MORTGAGOR A DECREE FOR
FORECLOSURE IS PASSED
(Order
XXXIV, rule 7.—Where the Court declares the amount due.)
(Title)
(1)
This suit coming on this …….……. day, etc.; It
is hereby declared that the amount due to the defendant on the mortgage
mentioned in the plaint calculated up to this …….. day of is the sum of Rs.
…….…… for principal, the sum of Rs. for interest on the said principal, the sum
of Rs. for costs, charges and expenses (other than the costs of the suit)
properly incurred by the defendant in respect of the mortgage-security together
with interest thereon, and the sum of Rs. …...……. for the costs of the suit awarded
to the defendant, making in all the sum of Rs. ……………
(2)
And it is hereby ordered and decreed as
follows:—
(i)
that the plaintiff do pay into Court on or
before the.………….. day of or any later date up to which time for payment may be
extended by the Court the said sum of Rs. ……………
(ii)
that, on such payment and on payment
thereafter before such date as the Court may fix of such amount as the Court
may adjudge due in respect of such cost of the suit and such costs, charges and
expenses as may be payable under rule 10, together with such subsequent
interest as may be payable under rule 11, of Order XXXIV of the First Schedule
to the Code of Civil Procedure, 1908, the defendant shall bring into Court all
documents in his possession or power relating to the mortgaged property in the
plaint mentioned, and all such documents shall be delivered over to the
plaintiff, or to such person as he appoints, and the defendant shall, if so
required, re-convey or re-transfer the said property free from the said
mortgage and clear of and from all incumbrances created by the defendant or any
person claiming under him or any person under whom he claims, and free from all
liability whatsoever arising from the mortgage or this suit and shall, if so
required, deliver up to the plaintiff quiet and peaceable possession of the
said property.
(3)
And it is hereby further ordered and decreed
that, in default of payment as aforesaid, the defendant may apply to the Court
for a final decree that the plaintiff shall thenceforth stand absolutely debarred
and foreclosed of and from all right to redeem the mortgaged property described
in the Schedule annexed hereto and shall, if so required, deliver up to the
defendant quiet and peaceable possession of the said property; and that the
parties shall be at liberty to apply to the Court from time to time as they may
have occasion, and on such application or otherwise the Court may give such
directions as it thinks fit.
Schedule
Description
of the mortgaged property]
[No. 7C
PRELIMINARY
DECREE FOR REDEMPTION WHERE ON DEFAULT OF PAYMENT BY MORTGAGOR A DECREE FOR
SALE IS PASSED
(Order
XXXIV, rule 7.—Where the Court declares the amount due.)
(Title)
(1)
This suit coming on this …………… day, etc.; It
is hereby declared that the amount due to the defendant on the mortgage
mentioned in the plaint calculated up to this ………… day of is the sum of Rs.
………….. for principal, the sum of Rs. for interest on the said principal, the
sum of Rs. for costs, charges and expenses (other than the costs of the suit)
properly incurred by the defendant in respect of mortgage-security together
with interest thereon, and the sum of Rs. For the cost of this suit awarded to
the defendant, making in all the sum of Rs. ……………
(2)
And it is hereby ordered and decreed as
follows:—
(i)
that the plaintiff do pay into Court on or
before the ………… day of or any later date up to which time for payment may he
extended by the Court the said sum of Rs. ;
(ii)
that, on such payment and on payment
thereafter before such date as the Court may fix of such amount as the Court
may adjudge due in respect of such costs of the suit and such costs, charges
and expenses as may be payable under rule 10, together with such subsequent
interest as may be payable under rule 11, of Order XXXIV of the First Schedule
to the Code of Civil Procedure, 1908, the defendant shall bring into Court all
documents in his possession or power relating to the mortgaged property in the
plaint mentioned, and all such documents shall be delivered over to the
plaintiff or such person as he appoints, and the defendant shall, if so
required, re-convey or re-transfer the said property to the plaintiff free from
the said mortgage and clear of and from all incumbrances created by the
defendant or any person claiming under him or any person under whom he claims and
shall, if so required, deliver up to the plaintiff quiet and peaceable
possession of the said property.
(3)
And it is hereby further ordered and decreed
that, in default of payment as aforesaid, the defendant may apply to the Court
for a final decree for the sale of the mortgaged property; and on such
application being made, the mortgaged property or a sufficient part thereof
shall be directed to be sold; and for the purposes of such sale the defendant
shall produce before the Court or such officer as it appoints all documents in
his possession or power relating to the mortgaged property.
(4)
And it is hereby further ordered and decreed
that the money realised by such sale shall be paid into Court and shall be duly
applied (after deduction therefrom of the expenses of the sale) in payment of
the amount payable to the defendant under this decree and under any further
orders that may be passed in this suit and in payment of any amount which the
Court may adjudge due to the defendant in respect of such costs of the suit and
such costs, charges and expenses as may be payable under rule 10, together with
such subsequent interest as may be payable under rule 11, of Order XXXIV of the
First Schedule to the Code of Civil Procedure, 1908, and that the balance, if
any, shall be paid to the plaintiff or other persons entitled to the same.
(5)
And it is hereby further ordered and decreed
that, if the money realised by such sale shall not be sufficient for the
payment in full of the amount payable to the defendant as aforesaid, the
defendant shall be at liberty (where such remedy is open to him under the terms
of the mortgage and is not barred by any law for the time being in force) to
apply for a personal decree against the plaintiff for the amount of the
balance; and that the parties are at liberty to apply to the Court from time to
time as they may have occasion, and on such application or otherwise the Court
may give such directions as it thinks fit.
Schedule
Description
of the mortgaged property]
[No. 7D
FINAL
DECREE FOR FORECLOSURE IN A REDEMPTION SUIT ON DEFAULT OF PAYMENT BY MORTGAGOR
(Order
XXXIV, rule 8.)
(Title)
(1)
Upon reading the preliminary decree in this
suit on the .............…. day of ……….…. and further order (if any) dated the
………..…… day of , and the application of the defendant dated the ……….... day of
for a final decree and after hearing the parties, and it appearing that the
payment as directed by the said decree and orders has not been made by the
plaintiff or any person on his behalf or any other person entitled to redeem
the mortgage.
It is hereby ordered and
decreed that the plaintiff and all persons claiming through or under him be and
they are hereby absolutely debarred and foreclosed of and from all right of
redemption of and in the property in the aforesaid preliminary decree mentioned
[and
(if the plaintiff be in possession of the said mortgaged property) that the
plaintiff shall deliver to the defendant quit and peaceable possession of the
said mortgaged property].
(2)
And it is hereby further declared that the
whole of the liability whatsoever of the plaintiff up to this day arising from
the said mortgage mentioned in the plaint or from this suit is hereby discharge
and extinguished.
[No. 7E
FINAL
DECREE FOR SALE IN A REDEMPTION ON SUIT ON DEFAULT OF PAYMENT BY MORTGAGOR
(Order
XXXIV, rule 8)
(Title)
(1)
Upon reading the preliminary decree in this
suit on the ……………. day of and further order (if any) dated the …………….. day of
……………….. , and the application of the defendant dated the ……………… day of for a
final decree and after hearing the parties, and it appearing that the payment
directed by the said decree and orders has not been made by the plaintiff or
any person on his behalf or any other person entitled to redeem the mortgage;
It is hereby ordered and decreed
that the mortgaged property in the aforesaid preliminary decree mentioned or a
sufficient part thereof be sold and that for the purposes of such sale the
defendant shall produce before the Court, or such officer as it appoints, all
documents in his possession or power relating to the mortgaged property.
(2)
And it is hereby further ordered and decreed
that the money realised by such sale shall be paid into Court and shall be duly
applied (after deduction therefrom of the expenses of the sale) in payment of
the amount payable to the defendant under the aforesaid preliminary decree and
under any further orders that may have been passed in this suit and in payment
of any amount which the Court may have adjudged due to the defendant for such
costs of this suit including the costs of this application and such costs,
charges and expenses as may be payable under rule l0, together with the
subsequent interest as may be payable under rule 11, of Order XXXIV of the
First Schedule to the Code of Civil Procedure, 1908, and that the balance, if
any, shall be paid to the plaintiff or other persons entitled to receive the
same.]
[No. 7F
FINAL
DECREE IN A SUIT FOR FORECLOSURE, SALE OR REDEMPTION WHERE THE MORTGAGOR PAYS
THE AMOUNT OF THE DECREE
(Order
XXXIV, rule 3, 5 and 8)
(Title)
(1)
This suit coming on this day for further
consideration and it appearing that on the …………….. day of ……………….. the
mortgagor or …………….. , the same being a person entitled to redeem, has paid
into Court all amounts due to the mortgagee under the preliminary decree dated
the …………………. day of ; It is hereby ordered and decreed that:—
(i)
the mortgagee do execute a deed of
re-conveyance of the property in the aforesaid preliminary decree mentioned in
favour of the mortgagor [or,
as the case may be, ……………….. who has redeemed the property] or an
acknowledgement of the payment of the amount due in his favour;
(ii)
the mortgagee do bring into Court all
documents in his possession and power relating to the mortgaged property in the
suit.
(2)
And it is hereby further ordered and decreed
that upon the mortgagee executing the deed of re- conveyance or acknowledgement
in the manner aforesaid,—
(i)
the said sum of Rs. be paid out of Court to
the mortgagee;
(ii)
the said deeds and documents brought into the
Court be delivered out of Court to the mortgagor [or
the person making the payment] and the mortgagee do, when so required, concur
in registering, at the cost of the mortgagor [or
other person making the payment], the said deed of re-conveyance or the
acknowledgement in the office of the Sub-Registrar of ; and
(iii)
[if
the mortgagee, plaintiff or defendant, as the case may be, is in possession of
the mortgaged property] that the mortgagee do forthwith deliver possession of
the mortgaged property in the aforesaid preliminary decree mentioned to the
mortgagor [or
such person as aforesaid who has made the payment].
[No. 8
DECREE
AGAINST MORTGAGOR PERSONALLY FOR BALANCE AFTER THE SALE OF THE MORTGAGED
PROPERTY
(Order
XXXIV, rules 6 and 8A)
(Title)
Upon reading the application
of the mortgagee (the plaintiff or defendant, as the case may be) and reading
the final decree passed in the suit on the .................... day of and the
Court being satisfied that the net proceeds of the sale held under the
aforesaid final decree amounted to Rs. …………. and have been paid to the
applicant out of the Court on the ………………... day of and that the balance now due
to him under the aforesaid decree is Rs. ;
And whereas it appears to
the Court that the said sum is legally recoverable from the mortgagor
(plaintiff or defendant, as the case may be) personally;
It is hereby ordered and
decreed as follows:—
That the mortgagor
(plaintiff or defendant, as the case may be) do pay to the mortgagee (defendant
or plaintiff, as the case may be) the said sum of Rs. with further interest at
the rate of six per cent. per annum from the ………………… day of (the date of
payment out of Court referred to above) up to the date of realisation of the
said sum, and the costs of this application.]
[No. 9
PRELIMINARY
DECREE FOR FORECLOSURE OF SALE
[Plaintiff 1st Mortgagee,
vs
Defendant No. 1 Mortgagor,
Defendant No. 2 . . . . . .
2nd Mortgagee.]
(Order
XXXIV, rules 2 and 4)
(Title)
(1)
The suit coming on this ……………. day, etc; It
is hereby declared that the amount due to the plaintiff on the mortgage
mentioned in the plaint calculated up to this day of is the sum of Rs.
………………….. for principal, the sum of Rs. for interest on the said principal, the
sum of Rs. for costs, charges and expenses (other than the costs of the suit)
incurred by the plaintiff in respect of the mortgage-security with interest
thereon and sum of Rs. For the costs of this suit awarded to the plaintiff,
making in all the sum of Rs. …………….. .
(Similar declarations to be
introduced with regard to the amount due to defendant No. 2 in respect of his
mortgage if the mortgage-money due thereunder has become payable at the date of
the suit.)
(2)
It is further declared that the plaintiff is
entitled to payment of the amount due to him in priority to defendant No. 2 [or
(if there are several subsequent mortgagees) that the several parties hereto
are entitled in the following order to the payment of the sums due to them
respectively:—].
(3)
And it is hereby ordered and decreed as
follows:—
(i)
(a) that defendants or one of them do pay
into Court on or before the day of or any later date up to which time for
payment has been extended by the Court the said sum of Rs. due to the
plaintiff; and
(b) that defendant No. 1 do
pay into Court on or before the day of or any later date up to which time for
payment has been extended by the Court the said sum of Rs due to defendant No.
2; and
(ii)
that, on payment of the sum declared to be
due to the plaintiff by defendants or either of them in the manner prescribed
in clause (i) (a) and on payment thereafter before such date as the Court may
fix of such amount as the Court may adjudge due in respect of such costs of the
suit and such costs, charges and expenses as may be payable under rule 10,
together with such subsequent interest as may be payable under rule 11, of
Order XXXIV of the First Schedule to the Code of Civil Procedure, 1908, the
plaintiff shall bring into Court all documents in his possession or power
relating to the mortgaged property in the plaint mentioned, and all such
documents shall be delivered over to the defendant No… (who has made the
payment), or to such person as he appoints, and the plaintiff shall, if so
required, re-convey or re-transfer the said property free from the said
mortgage and clear of and from all incumbrances created by the plaintiff or any
person claiming under him or any person under whom he claims, and also free
from all liability whatsoever arising from the mortgage or this suit and shall,
if so required, deliver up to the defendant No……… (who has made the payment)
quiet and peaceable possession of the said property.
(Similar declarations to be
introduced, if defendant No. 1 pays the amount found or declared to be due to
defendant No. 2 with such variations as may be necessary having regard to the
nature of his mortgage).
(4)
And it is hereby further ordered and decreed
that, in default of payment as aforesaid of the amount due to the plaintiff,
the plaintiff shall be at liberty to apply to the Court for a final decree—
(i)
[in
the case of a mortgage by conditional sale or an anomalous mortgage where the
only remedy provided for in the mortgage-deed is foreclosure and not sale] that
the defendants jointly and severally shall thenceforth stand absolutely
debarred and foreclosed of and from all right to redeem the mortgaged property
described in the Schedule annexed hereto and shall, if so required, deliver to
the plaintiff quiet and peaceable possession of the said property; or
(ii)
[in
the case of any other mortgage] that the mortgaged property or a sufficient
part thereof shall be sold; and that for the purposes of such sale the
plaintiff shall produce before Court or such officer as it appoints, all
documents in his possession or power relating to the mortgaged property; and
(iii)
[in
the case where a sale is ordered under clause 4 (ii) above] that the money
realised by such sale shall be paid into Court and be duly applied (after
deduction therefrom of the expenses of the sale) in payment of the amount
payable to the plaintiff under this decree and under any further orders that
may have been passed in this suit and in payment of the amount which the Court
may adjudge due to the plaintiff in respect of such costs of the suit and such
costs, charges and expenses as may be payable under rule 10, together with such
subsequent interest as may be payable under rule 11, of Order XXXIV of the
First Schedule to the Code of Civil Procedure, 1908, and that the balance, if
any, shall be applied in payment of the amount due to defendant No. 2; and that
if any balance be left, it shall be paid to the defendant No. 1 or other
persons entitled to receive the same; and
(iv)
that, if the money realised by such sale
shall not be sufficient for payment in full of the amounts due to the plaintiff
and defendant No. 2, the plaintiff or defendant No. 2 or both of them, as the
case may be, shall be at liberty (when such remedy is open under the terms of
their respective mortgages and is not barred by any law for the time being in
force) to apply for a personal decree against defendant No. 1 for the amounts
remaining due to them respectively.
(5)
And it is hereby further ordered and decreed—
(a)
that if defendant No. 2 pays into Court to
the credit of this suit the amount adjudged due to the plaintiff, but defendant
No. 1 makes default in the payment of the said amount, defendant No. 2 shall be
at liberty to apply to the Court to keep the plaintiff's mortgage alive for his
benefit and to apply for a final decree (in the same manner as the plaintiff
might have done under clause 4 above)—
[(i)
that defendant No. 1 shall thenceforth stand absolutely debarred and foreclosed
of and from all right to redeem the mortgaged property described in the
Schedule annexed hereto and shall, if so required, deliver up to defendant No.
2 quiet and peaceable possession of the said property;] or
[(ii)
that the mortgaged property or a sufficient part thereof be sold and that for
the purposes of such sale defendant No. 2 shall produce before the Court or
such officer as it appoints, all documents in his possession or power relating
to the mortgaged property;] and
(b)
(if on the application of defendant No. 2
such a final decree for foreclosure is passed), that the whole of the liability
of defendant No. 1 arising from the plaintiff's mortgage or from the mortgage
of defendant No. 2 or from this suit shall be deemed to have been discharged
and extinguished.
(6)
And it is hereby further ordered and decreed [in
the case where a sale is ordered under clause 5 above]—
(i)
that the money realised by such sale shall be
paid into Court and be duly applied (after deduction therefrom of the expenses
of the sale) first in payment of the amount paid by defendant No. 2 in respect
of the plaintiff's mortgage and the costs of the suit in connection therewith
and in payment of the amount which the Court may adjudge due in respect of
subsequent interest on the said amount; and that the balance, if any, shall
then be applied in payment of the amount adjudged due to defendant No. 2 in
respect of his own mortgage under this decree and any further orders that may
be passed and in payment of the amount which the Court may adjudge due in
respect of such costs of this suit and such costs, charges and expenses as may
be payable to defendant No. 2 under rule 10, together with such subsequent
interest as may be payable under rule 11, of Order XXXIV of the First Schedule
to the Code of Civil Procedure, 1908, and that the balance, if any, shall be
paid to defendant No. 1 or other persons entitled to receive the same; and
(ii)
that, if the money realised by such sale
shall not be sufficient for payment in full of the amount due in respect of the
plaintiff's mortgage or defendant No. 2’s mortgage, defendant No. 2 shall be at
liberty (where such remedy is open to him under the terms of his mortgage and
is not barred by any law for the time being in force) to apply for a personal
decree against No. 1 for the amount of the balance.
(7)
And it is hereby further ordered and decreed
that the parties are at liberty to apply to the Court from time to time as they
may have occasion, and on such application or otherwise the Court may give such
directions as it thinks fit.
Schedule
Description
of the mortgaged property
[No. 10
PRELIMINARY
DECREE FOR REDEMPTION OF PRIOR MORTGAGE AND FORECLOSURE OR SALE ON SUBSEQUENT
MORTGAGE
[Plaintiff . . . . . . . 2nd
Mortgagee,
vs.
Defendant No. 1. . . . . . .
Mortgagor,
Defendant No. 2 . . . . . .
1st Mortgagee].
(Order
XXXIV, rules 2, 4, and 7)
(Title)
(1)
The suit coming on this day, etc.; It is
hereby declared that the amount due to defendant No. 2 on the mortgage
mentioned in the plaint calculated up to this ……..…. day of is the sum of Rs.
………...….. for principal, the sum of Rs. for interest on the said principal, the
sum of Rs. ………….. for costs, charges and expenses (other than the costs of the
suit) properly incurred by defendant No. 2 in respect of the mortgage-security
with interest thereon and the sum of Rs for the costs of this suit awarded to
defendant No. 2, making in all the sum of Rs. ……………….
(Similar declarations to be
introduced with regard to the amount due from defendant No. 1 to the plaintiff
in respect of his mortgage if the mortgage-money due thereunder has become
payable at the date of the suit.)
(2)
It is further declared that defendant No. 2
is entitled to payment of the amount due to him in priority to the plaintiff [or
( if there are several subsequent mortgages) that the several parties hereto
are entitled in the following order to the payment of the sums due to them
respectively :—]
(3)
And it is hereby ordered and decreed as
follows:—
(i)
(a) that the plaintiff or defendant No. 1 or
one of them do pay into Court on or before the …. day of or any later date up
to which time for payment has extended by the Court the said sum of Rs. due to
defendant No. 2; and
(b) that defendant No. 1 do
pay into Court on or before the ……………. day of or any later date up to which
time for payment has been extended by the Court the said sum of Rs.………… due to
the plaintiff; and
(ii)
that, on payment of the sum declared due to
defendant No. 2 by the plaintiff defendant No 1 or either of them in the manner
prescribed in clause (i)(a) and on payment thereafter before such date as the
Court may fix of such amount as the Court may adjudge due respect of such costs
of the suit and such costs, charges and expenses as may be payable under rule
10, together with such subsequent interest as may be payable under rule 11, of
Order XXXIV of the First Schedule to the Code of Civil Procedure, 1908,
defendant No. 2 shall bring into Court all documents in his possession or power
relating to the mortgaged property in the plaint mentioned and all such
documents shall be delivered over to the plaintiff or defendant No. 1 (whoever
made the payment), or to such person as he appoints, and defendant No. 2 shall,
if so required, reconvey or re-transfer the said property free from the said
mortgage and clear of and from all incumbrances created by defendant No. 2 or
any person claiming under him or any person under whom he claims, and also free
from all liability whatsoever arising from the mortgage or this suit and shall,
if so required, deliver up to the plaintiff or defendant No. 1 (whoever has
made the payment) quiet and peaceable possession of the said property.
(Similar declarations) to be
introduced, if defendant No. 1 pays the amount found or declared due the
plaintiff with such variations as may be necessary having regard to the nature
of his mortgage.)
(4)
And it is hereby further ordered and decreed
that, in default of payment as aforesaid, of the amount due to defendant No. 2,
defendant No. 2 shall be at liberty to apply to the Court that the suit be
dismissed or a final decree—
(i)
[in
the case of a mortgage by conditional sale or an anomalous mortgage where the
or remedy provided for in the mortgage-deed is foreclosure and not sale] that
the plaintiff and defendant No. 1 jointly and severally shall thenceforth stand
absolutely debarred and foreclosed of and from all right to redeem the
mortgaged property described in the Schedule annexed hereto and shall; if
required, deliver to the defendant No. 2 quiet and peaceable possession of the
said property; or
(ii)
[in
the case of any other mortgage] that the mortgaged property or a sufficient
part thereof shall be sold; and that for the purposes of such sale defendant
No. 2 shall produce before the Court such officer as it appoints, all documents
in his possession or power relating to the mortgaged property and
(iii)
[in
the case where a sale is ordered under clause 4 (ii) above] that the money
realised such sale shall be paid into Court and be duly applied (after
deduction therefrom of the expenses of sale) in payment of the amount payable
to defendant No. 2 under the decree and any further orders that may be passed
in this suit and in payment of the amount which the Court may adjudge due to
defendant No. 2 in respect of such costs of the suit and such costs, charges
and expenses as may be payable to plaintiff under rule 10, together with such
subsequent interest as may be payable under rule 11, of Order XXXIV of the
First Schedule to the Code of Civil Procedure, 1908; and that the balance, if
any, shall applied in payment of the amount due to the plaintiff and that, if
any balance be left, it shall be paid defendant No. 1 or other persons entitled
to receive the same; and
(iv)
that, if the money realised by such sale
shall not be sufficient for payment in full of the amounts due to defendant No.
2 and the plaintiff, defendant No. 2 or the plaintiff or both of them, as the
case may be, shall be at liberty (when such remedy is open under the terms of
their respective mortgages and is not barred by any law for the time being in
force) to apply for a personal decree against defendant No. 1 for the amounts
remaining due to them respectively.
(5)
And it is hereby further ordered and
decreed,—
(a)
that, if the plaintiff pays into Court to the
credit of this suit the amount adjudged due to defendant No. 2 but defendant
No. 1 makes default in the payment of the said amount, the plaintiff shall be
at liberty to apply to the Court to keep defendant No. 2’s mortgage alive for
his benefit and to apply for final decree (in the same manner as the defendant
No. 2 might have done under clause 4 above)—
[(i)
that defendant No. 1 shall thenceforth stand absolutely debarred and foreclosed
of and from all right to redeem the mortgaged property described in the
Schedule annexed hereto and shall, if so required, deliver up to the plaintiff
quiet and peaceable possession of the said property]; or
[(ii)
that the mortgaged property or a sufficient part thereof be sold and that for
the purposes of such sale the plaintiff shall produce before the Court or such
officer as it appoints, all documents in his possession or power relating to
the mortgaged property;] and
(b)
(if on the application of defendant No. 2
such a final decree for foreclosure is passed), that the whole of the liability
of defendant No. 1 arising from the plaintiff’s mortgage or from the mortgage
of defendant No. 2 or from this suit shall be deemed to have been discharged
and extinguished.
(6)
And it is hereby further ordered and decreed
(in the case where a sale is ordered under clause 5 above)—
(i)
that the money realised by such sale shall be
paid into Court and be duly applied (after deduction therefrom of the expenses
of the sale) first in payment of the amount paid by the plaintiff in respect of
defendant No. 2’s mortgage and the cost of the suit in connection therewith and
in payment of the amount which the Court may adjudge due in respect of
subsequent interest on the said amount; and that the balance, if any, shall then
be applied in payment of the amount adjudged due to the plaintiff in respect of
his own mortgage under this decree and any further orders that may be passed
and in payment of the amount which the Court may adjudge due in respect of such
costs of the suit and such costs, charges and expenses as may by payable to the
plaintiff under rule 10, together with such subsequent interest as may be
payable under rule 11, of Order XXXIV of the First Schedule to the Code of
Civil Procedure, 1908, and that the balance, if any, shall be paid to defendant
No. 1 or other persons entitled to receive the same; and
(ii)
that, if the money realised by such sale
shall not be sufficient for payment in full of the amount due in respect of
defendant No. 2’s mortgage or the plaintiff's mortgage, defendant No. 2 shall
be at liberty (where such remedy is open to him under the terms of his mortgage
and is not barred by any law for the time being in force) to apply for a
personal decree against defendant No. 1 for the amount of the balance.
(7)
And it is hereby further ordered and decreed
that the parties are at liberty to apply to the Court from time to time as they
may have occasion, and on such application or otherwise the Court may give such
directions as it thinks fit.
Schedule
Description
of the mortgaged property]
[No. 11
PRELIMINARY
DECREE FOR SALE
Plaintiff . . . . . . . Sub
or derivative mortgagee
vs.
[Defendant No. 1 . . . . . .
Mortgagor,
Defendant No. 2 . . . . . .
Original Mortgagee.]
(Order
XXXIV, rule 4)
(Title)
(1)
This suit coming on the ………….…….. day, etc.;
It is hereby declared that the amount due to defendant No. 2 on his mortgage
calculated up to this ………………… day of is the sum of Rs. …………..…. for principal,
the sum of Rs. for interest on the said principal, the sum of Rs. …………….. for
costs, charges and expenses (other than the costs of the suit) in respect of
the mortgage-security together with interest thereon and the sum of Rs. for the
costs of the suit awarded to defendant No. 2, making in all the sum of Rs.
……………
(Similar declarations to be
introduced with regard to the amount due from defendant No. 2 to the plaintiff
in respect of his mortgage.)
(2)
And it is hereby ordered and decreed as
follows:—
(i)
that defendant No. 1 do pay into Court on or
before the said ………… day of or any later date of up to which time for payment
may be extended by the Court the said sum of Rs. ………. due to defendant No. 2;
(Similar declarations to be
introduced with regard to the amount due to the plaintiff, defendant No. 2
being at liberty to pay such amount.)
(ii)
that, on payment of the sum declared due to
defendant No. 2 by defendant No. 1 in the manner prescribed in clause 2 (i) and
on payment thereafter before such date as the Court may fix of such amount as
the Court may adjudge due in respect of such costs of the suit and such costs,
charges and expenses as may be payable under rule 10, together with such
subsequent interest as may be payable under rule 11, of Order XXXIV of the
First Schedule to the Code of Civil Procedure, 1908 the plaintiff and defendant
No. 2 shall bring into Court all documents in their possession or power
relating to the mortgaged property in the plaint mentioned, and all such
documents (except such as relate only to the sub-mortgage) shall be delivered
over to defendant No. 1, or to such person as he appoints, and defendant No. 2
shall, if so required, re-convey or re-transfer the property to defendant No. 1
free from the said mortgage clear of and from all encumbrances created by
defendant No. 2 or any person claiming under him or any person under whom he
claims, and free from all liability arising from the mortgage or this suit and
shall, if so required, deliver up to defendant No. 1 quiet and peaceable
possession of the said property; and
(iii)
that, upon payment into the Court by defendant
No. 1 of the amount due to defendant No. 2 the plaintiff shall be at liberty to
apply for payment to him of the sum declared due to him together with any
subsequent costs of the suit and other costs, charges and expenses, as may be
payable under rule 10, together with such subsequent interests as may be
payable under rule 11, of Order XXXIV of the First Schedule to the Code of
Civil Procedure, 1908; and that the balance, if any, shall then be paid to
defendant No. 2; and that if the amount paid into the Court be not sufficient
to pay in full the sum due to the plaintiff, the plaintiff shall be at liberty
(if such remedy is open to him by the terms of the mortgage and is not barred
by any law for the time being in force) to apply for a personal decree against
as defendant No. 2 for the amount of the balance.
(3)
And it is further ordered and decreed that if
defendant No. 2 pays into Court to the credit of this suit the amount adjudged
due to the plaintiff, the plaintiff shall bring into the Court all documents,
etc., [as in sub-clause (ii) of clause 2].
(4)
And it is hereby further ordered and decreed
that, in default of payment by defendant Nos. 1 and 2 as aforesaid, the
plaintiff may apply to the Court for a final decree for sale, and on such
application being made the mortgaged property or a sufficient part thereof
shall be directed to be sold; and that for the purposes of such sale the
plaintiff and defendant No. 2 shall produce before the Court or such officer as
it appoints, all documents in their possession or power relating to the
mortgaged property.
(5)
And it is hereby further ordered and decreed
that the money realised by such sale shall be paid into Court and be duly
applied (after deduction therefrom of the expenses of the sale) first in
payment of the amount due to the plaintiff as specified in clause 1 above with
such costs of the suit and other costs, charges and expenses as may be payable
under rule 10, together with such subsequent interest as may be payable under
rule 11, of order) XXXIV of the First Schedule to the Code of Civil Procedure,
1908, and that the balance, if any, shall be applied in payment of the amount
due to defendant No. 2; and that, if any balance be left, it shall be paid to
defendant No. 1 or other persons entitled to receive the same.
(6)
And it is hereby further ordered and decreed
that, if the money realised by such sale shall not be sufficient for payment in
full of the amounts payable to the plaintiff and defendant No. 2, the plaintiff
or defendant No. 2, or both of them, as the case may be, shall be at liberty
(if such remedy is open under their respective mortgages and is not barred by
any law for the time being in force) to apply for a personal decree against
defendant No. 2 or defendant No. 1 (as the case may be) for the amount of the
balance.
(7)
And it is hereby further ordered and decreed
that, if defendant No. 2 pays into Court to the credit of this suit the amount
adjudged due to the plaintiff, but defendant No. 1 makes default in payment of
the amount due to defendant No. 2, defendant No. 2 shall be at liberty to apply
to the Court for a final decree for foreclosure or sale (as the case may
be)—(declarations in the ordinary form to be introduced according to the nature
of defendant No. 2’s mortgage and the remedies open to him thereunder).
(8)
And it is hereby further ordered and decreed
that the parties are at liberty to apply to the Court as they may have
occasion, and on such application or otherwise the Court may give such
directions as it thinks fit.
Schedule
Description
of the mortgaged property]
No.
12
DECREE
FOR RECTIFICATION OF INSTRUMENT
(Title)
IT is hereby declared that
……………. , dated the ……………. day of …………… 20 , does not truly express the
intention of the parties to such …………………….
And it is decreed that the
said ……………….. be rectified by …………………..
Here insert name of proper
officer.
No.
13
DECREE
TO SET ASIDE A TRANSFER IN FRAUD OF CREDITORS
(Title)
IT is hereby declared that
the …………… , dated the …………… day of ………. 20 , and made between …………… and , is
void as against the plaintiff and all other the creditors, if any, of the
defendant
No.
14
INJUNCTION
AGAINST PRIVATE NUISANCE
(Title)
LET the defendant , his
agents, servants and workmen, be perpetually restrained from burning, or
causing to be burnt, any bricks on the defendant’s plot of land marked B in the
annexed plan, so as to occasion a nuisance to the plaintiff as the owner or
occupier of the dwelling-house and garden mentioned in the plaint as belonging
to and being occupied by the plaintiff.
No.
15
INJUNTION
AGAINST BUILDING HIGHER THAN OLD LEVEL
(Title)
LET the defendant …………….. ,
his contractors, agents and workmen, be perpetually restrained from continuing
to erect upon his premises ………………… any house or building of a greater height
than the buildings which formerly stood upon his said premises and which have
been recently pulled down, so or in such manner as to darken, injure or
obstruct such of the plaintiff’s windows in his said premises as are ancient
lights.
No.16
INJUNCTION
RESTRAINING USE OF PRIVATE ROAD
(Title)
LET the defendant ……………..
his agents, servants and workmen, be perpetually restrained from using or
permitting to be used and part of the lane at …………… , the soil of which belongs
to the plaintiff, as a carriage-way for the passage of carts, carriages or
other vehicles, either going to or from the land marked B in the annexed plan
or for any purpose whatsoever.
No.
17
PRELIMINARY
DECREE IN AN ADMINISTRATION-SUIT
(Title)
IT is ordered that the
following accounts and inquiries be taken and made; that is to say :—
In creditor’s suit—
(1)
That an account be taken of what is due to
the plaintiff and all other the creditors of the deceased.
In suits by legatees—
(2)
That an accounts be taken of the legacies
given by the testators will, In suits by next-of-kin—
(3)
That an inquiry be made and account taken of
what or of what share, if any, the plaintiff is entitled to as next-of-kin [or
one of the next-of-kin] of the intestate.
[After the first paragraph,
the decree will, where necessary, order, in a creditor’s suit, inquiry and
accounts for legatees, heirs-at-law and next-of-kin. In suits by claimants
other than creditors, after the first paragraph, in all cases, an order to
inquire and take an account of creditors will follow the first paragraph and
such of the others as may be necessary will follow, omitting the first formal
words. The form is continued as in a creditor's suit.]
(4)
An account of the funeral and testamentary
expenses.
(5)
An account of the movable property of the
deceased come to the hands of the defendant, or to the hands of any other
person by his order or for his use.
(6)
An inquiry what part (if any) of the movable
property of the deceased is outstanding and undisposed of.
(7)
And it is further ordered that the defendant
do, on or before the day of next, pay into, Court all sums of money which shall
be found to have come to his hands, or to the hands of any person by his order
or for his use.
(8)
And that if the
shall find it necessary for carrying out the objects of the suit to sell any
part of the movable property of the deceased that the same be sold accordingly,
and the proceeds paid into Court.
(9)
And that Mr. E. F. be receiver in the suit
(or proceeding) and receive and get in all outstanding debts and outstanding
movable property of the deceased, and pay the same into the hands of the ………..
(and
shall give security by bond for the due performance of his duties to the amount
of rupees).
(10)
And it is further ordered that if the movable
property of the deceased be found insufficient for carrying out the objects of
the suit, then the following further inquiries be made, and accounts taken,
that is to say—
(a)
an inquiry what immovable property the
deceased was seized of or entitled to at the time of his death;
(b)
an inquiry what are the encumbrances (if any)
affecting the immovable property of the deceased or any part thereof;
(c)
an account, so far as possible, of what is
due to the several incumbrancers, and to include a statement of the priorities
of such of the incumbrancers as shall consent to the sale hereinafter directed.
(11)
And that the immovable property of the
deceased, or so much thereof as shall be necessary to make up the fund in Court
sufficient to carry out the object of the suit, be sold with the approbation of
the Judge, free from incumbrances (if any) of such incumbrancers as shall
consent to the sale and subject to the incumbrances of such of them as shall
not consent.
(12)
And it is ordered that G. H. shall have the
conduct of the sale of the immovable property, and shall prepare the conditions
and contracts of sale subject to the approval of the and
that in case any doubt or difficulty shall arise the papers shall be submitted
to the Judge to settle.
(13)
And it is further ordered that, for the
purpose of the inquiries hereinbefore directed, the ………. shall
advertise in the newspapers according to the practice of the Court, or shall
make such inquiries in any other way which shall appear to the to
give the most useful publicity to such inquiries.
(14)
And it is ordered that the above inquiries
and accounts be made and taken, and that all other acts ordered to be done be
completed, before the day of ……………. and that the do
certify the result of the injuries, and the accounts, and that all other acts
ordered are completed, and have his certificate in that behalf ready for the
inspection of the parties on the ……………. day of …………..
(15)
And, lastly, it is ordered that this suit [or
proceedings] stand adjourned for making final decree to the day of …………………….
[Such part only of this
decree is to be used as is applicable to the particular case.]
No.
18
FINAL
DECREE IN AN ADMINISTRATION-SUIT BY A LEGATEE
(Title)
(1)
It is ordered that the defendant ………….. do,
on or before the ………….. day of pay into Court the sum of Rs. , the balance by
the said certificate found to be due from the said defendant on account of the
estate of …………….. , the testator and also the sum of Rs. For interest, at the
rate of Rs. ……………. per cent. per annum, from the …………….. day of to the ………….
day of …………, amounting together to the sum of Rs. ………………..
(2)
Let the
of the said Court tax the costs of the plaintiff and defendant in this suit,
and let the amount of the said costs, when so taxed, be paid out of the said
sum of Rs. ……………. ordered to be paid into Court as aforesaid, as follows:—
(a)
The costs of the plaintiff to Mr , his
attorney [or pleader] or and the costs of the defendant to Mr , his attorney
[or pleader].
(b)
And (if any debts are due) with the residue
of the said sum of Rs. after payment of the plaintiff’s and defendant's costs
as aforesaid let the sums, found to be owing to the several creditors mentioned
in the schedule to the certificate, of the ,
together with subsequent interest on such of the debts as bear interest, be
paid; and, after making such payments, let the amount coming to the several
legatees mentioned in the schedule, together with subsequent interest (to be
verified as aforesaid), be paid to them.
(3)
And if there should then be any residue, let
the same be paid to the residuary legatee.
No.
19
PRELIMINARY
DECREE IN AN ADMINISTRATION-SUIT BY A LEGATEE, WHERE AN EXECUTOR IS HELD
PERSONALLY LIABLE FOR THE PAYMENT OF LEGACIES
(Title)
(1)
IT is declared that the defendant is
personally liable to pay the legacy of Rs. Bequeathed to the plaintiff. —
(2)
And it is ordered that an account be taken of
what is due for principal and interest on the said legacy.
(3)
And it is also ordered that the defendant do,
within …………….. weeks after the date of the certificate of the ……..…… ,
pay to the plaintiff the amount of what the
shall certify to be due for principal and interest.
(4)
And it is ordered that the defendant do pay
the plaintiff his costs of suit, the same to be taxed in case the parties
differ.
No.
20
FINAL
DECREE IN AN ADMINISTRATION-SUIT BY NEXT-OF-KIN
(Title)
(1)
LET the
of the said Court tax the costs of the “plaintiff and defendant in this suit,
and let the amount of the said plaintiff’s costs, when so taxed, be paid by the
defendant to the plaintiff out of the sum of Rs. ……………. , the balance, by the
said certificate found to be due from the said defendant on account of the
personal estate of E.F., the intestate, within one week after the taxation of
the said costs by the said and
let the defendant retain for her own use out of such sum her costs, when taxed.
(2)
And it is ordered that the residue of the
said sum of Rs. ………………… after payment of the plaintiff’s and defendant’s costs
as aforesaid, be paid and applied by defendant as follows:—
(a)
Let the defendant, within one week after the
taxation of the said costs by the
as aforesaid, pay one-third share of the said residue to the plaintiffs A.B.,
and C.D., his wife, in her right as the sister and one of the next-of-kin of
the said E.F., the intestate.
(b)
Let the defendant retain for her own use one
other third share of said residue, as the mother and one of the next-of-kin of
the said E.F., the intestate.
(c)
And let the defendant, within one week after
the taxation of the said costs by the …………..
as aforesaid, pay the remaining one-third share of the said residue to G. H.,
as the brother and the other next- of-kin of the said E.F. the intestate.
No.
21
PRELIMINARY
DECREE IN A SUIT FOR DISSOLUTION OF PARTNERSHIP AND THE TAKING OF PARTNERSHIP
ACCOUNTS
(Title)
IT is declared that the
proportionate shares of the parties in the partnership are as follows:—
It is declared that this
partnership shall stand dissolved [or shall be deemed to have been dissolved]
as from the ………….. day of and it is ordered that the dissolution thereof as
from that day be advertised in the Gazette, etc.
And it is ordered that be
the receiver of the partnership-estate and effects in this suit and do get in
all the outstanding book-debts and claims of the partnership.
And it is ordered that the
following accounts be taken:—
(1)
An account of the credits, property and
effects now belonging to the said partnership;
(2)
An account of the debts and liabilities of
the said partnership;
(3)
An account of all dealings and transactions
between the plaintiff and defendant, from the foot of the settled account
exhibited in this suit and marked (A), and not disturbing any subsequent
settled accounts.
And it is ordered that the
goodwill of the business heretofore carried on by the plaintiff and defendant
as in the plaint mentioned; and the stock-in-trade, be sold on the premises,
and that the may,
on the application of any of the parties, fix a reserved bidding for all or any
of the lots at such sale, and that either of the parties is to be at liberty to
bid at the sale.
And it is ordered that the
above accounts be taken, and all the other acts required to be done be
completed, before the ……….. day of ……… , and that the
……….. do certify the result of the accounts, and that all other acts are
completed, and have his certificate in that behalf ready for the inspection of
the parties on the day of And, lastly, it is ordered that this suit stand
adjourned for making a final decree to the ………. day of …………
No.
22
FINAL
DECREE IN A SUIT FOR DISSOLUTION OF PARTNERSHIP AND THE TAKING OF PARTNERSHIP
ACCOUNT
(Title)
IT is ordered that the fund
now in Court, amounting to the sum of Rs. , be applied as follows:—
(1)
In payment of the debts due by the
partnership set forth in the certificate of the
………...….. amounting the whole to Rs. ……………
(2)
In payment of the costs of all parties in
this suit, amounting to Rs. [These costs must be ascertained before the decree
is drawn up.]
(3)
In payment of the sum of Rs. to the plaintiff
as his share of the partnership-assets, of the sum of Rs. …………….. , being the
residue of the said sum of Rs. now in Court, to the defendant as his share of
the partnership-assets.
[Or, And that the remainder
of the said sum of Rs. be paid to the said plaintiff (or defendant) in part
payment of the sum of Rs. certified to be due to him in respect of the
partnership-accounts.]
(4)
And that the defendant [or plaintiff] do on
or before the ………… day of pay to the plaintiff [or defendant] the sum of Rs.
………… being the balance of the said sum of Rs …………. due to him, which will then
remain due.
No.
23
DECREE
FOR RECOVERY OF LAND AND MESNE PROFIT
(Title)
IT is hereby decreed as
follows:—
(1)
That the defendant do put the plaintiff in
possession of the property specified in the schedule hereunto annexed.
(2)
That the defendant do pay to the plaintiff
the sum of Rs. with interest thereon at the rate of per cent. per annum to the
date of realization on account of mesne profits which have accrued due prior to
the institution of the suit.
Or
2. That an inquiry be made as to the account of
mesne profits which have accrued due prior to the institution of the suit.
3. That an inquiry be made as to the amount
mesne profits from the institution of the suit until [the delivery of
possession to the decree-holder] [the relinquishment of possession by the
judgment-debtor with notice to the decree-holder through the Court] [the
expiration of three years from the date of the decree].
Schedule
APPENDIX
E
EXECUTION
No.
1
NOTICE
TO SHOW CAUSE WHY A PAYMENT OR ADJUSTMENT SHOULD NOT BE RECORDED AS CERTIFIED
(O.21,
to r.2.)
(Title)
WHEREAS in execution of the
decree in the above-named suit has applied to this Court that the Sum of Rs.
…………….. recoverable under the decree has been paid/adjusted and should be recorded
as certified, this is to give you notice that you are to appear before this
Court on the ………… day of ………………. 19 , to show cause why the payment/adjustment
aforesaid should not be recorded as certified.
GIVEN under my hand and the
seal of the Court, this ……………….. day of 20.
Judge.
No.
2
PRECEPT
(Section 46)
(Title)
Upon hearing the
decree-holder it is ordered that this precept be sent to the Court of at …
under section 46 of the Code of Civil Procedure, 1908, with directions to
attach the property specified in the annexed schedule and to hold the same
pending any application which may be made by the decree-holder for execution of
the decree.
Schedule
Dated the ………………….. day of
20
Judge.
No.
3
ORDER
SENDING DECREE FOR EXECUTION TO ANOTHER COURT
(O.21,
r. 6.)
(Title)
WHEREAS the decree-holder in
the above suit has applied to this Court for a certificate to be sent to the
Court of ………………… at for execution of the decree in the above suit by the said
Court, alleging that the judgment-debtor resides or has property within the
local limits, for the jurisdiction of the said Court, and it is deemed
necessary and proper to send a certificate to the said Court under Order XXI,
rule 6, of the Code of Civil Procedure, 1908, it is.
Ordered:
That a copy of this order be
sent to with a copy of the decree and of any order which may have been made for
execution of the same and a certificate of non-satisfaction. Dated the ………………
day of ……………… 20 ………….
Judge.
No.
4
CERTIFICATE
OF NON-SATISFACTION OF DECREE
(O.21,
r. 6.)
(Title)
CERTIFIED that no
satisfaction of the decree of this Court in suit No ……………. of ........20 , a
copy which is hereunto attached, has been obtained by execution within the
jurisdiction of this Court.
Dated the ……………..day of
……………… 20 …………..
Judge.
No.
5
CERTIFICATE
OF EXECUTION OF DECREE TRANSFERRED TO ANOTHER COURT
(O.
21, r. 6.)
(Title)
|
Number of suit and the Court by which the decree was passed
|
Names of parties
|
Date
of application for execution
|
Number of the
execution case
|
Processes issued and
dates of service thereof
|
Costs of execution
|
Amount
realized
|
How the case is disposed of
|
Remarks
|
|
1
|
2
|
3
|
4
|
5
|
6
|
7
|
8
|
9
|
|
|
|
|
|
|
Rs.
|
N.P.
|
Rs.
|
N.P.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
No.
6
APPLICATION
FOR EXECUTION OF DECREE
(O.21,
r.11.)
In the Court of
I, decree-holder, hereby
apply for execution of the decree herein-below set forth:—
|
No. of Suit
|
Names of parties
|
Date of Decree
|
Whether any appeal
preferred from decree
|
Payment
of adjustment made
if any
|
Previous application, if any, with
date and result
|
Amount with
interest due upon the decree or other relief granted thereby together with
particulars of any cross decree.
|
Amount of costs, if any, awarded
|
Against whom to be executed
|
Mode in which
the assistance of the
Court is required.
|
|
1
|
2
|
3
|
4
|
5
|
6
|
7
|
8
|
9
|
10
|
|
789 of 1897
|
A.B. —Plaintiff
C.D. —Defendant
|
October 11, 1897
|
No.
|
None
|
R.s 72-4-0
recorded on application, dated the 4th
March,
1899
|
Rs. 314-8-2
principal [interest at 6 per
cent, per annum,
from
date of decree
till payment].
|
Rs. a. p
As awarded in the decree 47 10 4
Subsequently incurred 8 2 0
Total 55 12 4
|
Against
the defendant C.D.
|
[When attachment and sale of movable
property is sought.
I, Pray that the total
amount of Rs. [together with interest on the principal sum up to date of payment]
and the cost of taking out this execution, be realised by attachment and sale
of defendant’s movable property as per annexed list and paid to me.
[When attachment and sale of immovable
property is sought.]
I Pray that
the total amount
of Rs. [together with
interest on the principal sum up to date of payment] and the cost of taking out this execution, be
realised by the attachment and sale of defendant’s immovable property
specified at the foot of this application
and paid
to me.]
|
I declare that what is
stated herein is true to the best of my knowledge and belief.
Signed ,
decree-holder.
Dated the ………………….. day of
20
[When
attachment and sale of immovable property is sought.]
Description
and specification of property
The undivided one-third
share of the judgment-debtor in a house situated in the village of …………. value
Rs. 40, and bounded as follows:—
East by G’s house; west by
H’s house; south by public road; north by private lane and J’s house.
I ……………….. declare that what
is stated in the above description is true to the best of my knowledge and
belief, and so far as I have been able to ascertain the interest of the
defendant in the property therein specified.
Signed ,
decree-holder.
No.
7
NOTICE
TO SHOW CAUSE WHY EXECUTION SHOULD NOT ISSUE
[(O. 21, r.16.)]
(Title)
To
WHEREAS ………………… has made
application to this Court for execution of decree in Suit No. ……………… of 20 , on
the allegation that the said decree has been transferred to him by assignment [or
without assignment], this is to give you notice that you are to appear before
this Court ……………. on the ………….. day of …………………. 20………………. , to show cause why
execution should not be granted.
GIVEN under my hand and the
seal of the Court, this.............day of..............20.........
Judge.
No.
8
WARRANT
OF ATTACHMENT OF MOVABLE PROPERTY IN EXECUTION OF A DECREE
FOR
MONEY
(O.21.
r. 30.)
(Title)
To
The Bailiff of the Court
|
Decree
|
|
|
|
|
Principal Interest Costs
Cost of execution
Further interest
Total
|
|
|
|
|
|
|
|
WHEREAS ………..… was ordered
by decree of this Court passed on the day of …………….… 20 in Suit No. …………….
of............20 , to pay to the plaintiff the sum of Rs. ……………… as noted in
the margin; and whereas the said sum of Rs. ………….. has not been paid; These are
to command you to attach the movable property of the said as set forth in the
schedule hereunto annexed, or which shall be pointed out to you by the said ,
and unless the said shall pay to you the said sum of Rs. ……………… together with
Rs. , the cost of this attachment, to hold the same until further orders from
this Court.
You are further commanded to
return this warrant on or before the……………day of 20…. with an endorsement
certifying the day on which and manner in which it has been executed, or why it
has not been executed.
GIVEN under my hand and the
seal of the Court, this…………day of………..20.......
Schedule
Judge.
No.
9
WARRANT
FOR SEIZURE OF SPECIFIC MOVABLE PROPERTY ADJUDGED BY DECREE
(O.
21, r. 31.)
(Title)
To
The Bailiff of the Court,
WHEREAS………………….was ordered
by decree of this Court passed on the day of……......20…………, in Suit No…………of 20
, to deliver to the plaintiff the movable property (or a share in the movable
property) specified in the schedule hereunto annexed, and whereas the said
property (or share) has not been delivered.
These are to command you to
seize the said movable property (or a share of the said movable property) and
to deliver it to the plaintiff or to such person as he may appoint in his
behalf.
GIVEN under my hand and the
seal of the Court, this………..day of………………20............
Schedule
Judge.
No.
10
NOTICE
TO STATE OBJECTIONS TO DRAFT OF DOCUMENT
(O.
21, r. 34.)
(Title)
To
TAKE notice that on
the……..day of………20……., the decree-holder in the above suit presented an
application to this Court that the Court may execute on your behalf a deed of……
whereof a draft is hereunto annexed, of the immovable property specified
hereunder, and that the……..day of……………..20……, is appointed for the hearing of
the said application, and that you are at liberty to appear on the said day and
to state in writing any objections to the said draft.
Description
of property
GIVEN under my hand and the
seal of the Court, this…………day of .............20...........
Judge.
No.
11
WARRANT
TO THE BAILIFF TO GIVE POSSESSION OF LAND, ETC.
(O.21,
r. 35.)
(Title)
To
The Bailiff of the Court.
WHEREAS the undermentioned
property in the occupancy of has been decreed to …………, the plaintiff in this
suit; you are hereby directed to put the said in possession of the same, and you
are hereby authorized to remove any person bound by the decree who may refuse
to vacate the same.
GIVEN under my hand and the
seal of the Court, this ...................................... day of
...................... 20...........
Schedule
Judge.
No.
12
NOTICE
TO SHOW CAUSE WHY WARRANT OF ARREST SHOULD NOT ISSUE
(O.
21, r. 37.)
(Title)
To
WHEREAS has made application
to this Court for execution of decree in Suit
No.....................................of 20 by arrest and imprisonment of your
person, you are hereby required to appear before this Court on the
................................... day of ...................... 20 , to show
cause why you should not be committed to the civil prison in execution of the
said decree.
GIVEN under my hand and the
seal of the Court, this ................................day of
...............................20........
Judge.
No.
13
WARRANT
OF ARREST IN EXECUTION
(O.
21, r. 38.)
(Title)
To
The Bailiff of the Court.
WHEREAS …. ...........was
adjudged by a decree of this Court in suit No ..................
of..................... 20 , dated the………….day of……………20 ,to pay to the
decree-holder the sum of Rs… as noted in the margin, and whereas the said sum
of Rs… has not been paid to the said decree-holder in satisfaction of the said
decree, these are to command you to arrest the said judgement-debtor and unless
the said judgment-debtor shall pay to you the said sum of Rs…… together with
Rs… for the cost of executing this process, to bring the said defendant before
the Court with all convenient speed.
You are further commanded to
return this warrant on or before the………………day of………………..20 ,with an endorsement
certifying the day on which and manner in which it has been executed, or the
reason why it has not been executed.
Given under my hand and the
seal of the Court, this................................. day of
............................... 20……………
Judge.
No.
14
WARRANT
OF COMMITTAL OF JUDGEMENT-DEBTOR TO JAIL
(O.21,
r. 30.)
(Title)
To
The Officer in charge of the
Jail at
WHEREAS……………………………………... who
has been brought before this Court this day of……………….20 , under a warrant in
execution of a decree which was made and pronounced by the said Court on
the................................... day of .................................20
, and by which decree it was ordered that the said…………………….. should
pay...............................; And whereas the said has not obeyed the
decree nor satisfied the Court that he is entitled to be discharged from
custody; You are hereby ***
commanded and required to take and receive the said into the civil prison and
keep him imprisoned therein for a period not exceeding or until the said decree
shall be fully satisfied, or the said… shall be otherwise entitled to be
released according to terms and provisions of section 58 of the Code of Civil
Procedure, 1908; and the Court does hereby fix ***
per diem as the rate of the monthly allowance for the subsistence of the
said………..during his confinement under this warrant of committal.
GIVEN under my signature and
the seal of the Court, this…………day of……………20……..
Judge.
No.
15
ORDER
FOR THE RELEASE OF A PERSON IMPRISONED IN EXECUTION OF A DECREE
(Sections
58, 59)
(Title)
To
The Officer in charge of the
Jail at
UNDER orders passed this
day, you are hereby directed to set free judgment-debtor now in your custody.
Dated
Judge.
No.
16
ATTACHMENT
IN EXECUTION
PROHIBITORY
ORDER, WHERE THE PROPERTY TO BE ATTACHED CONSISTS OF MOVABLE PROPERTY TO WHICH
THE
DEFENDANT
IS ENTITLED SUBJECT TO A LIEN OR RIGHT OF SOME OTHER PERSON TO THE IMMEDIATE
POSSESSION THEREOF
(O.
21, r. 46.)
(Title)
To
WHEREAS………………………………………………………...has
failed to satisfy a decree passed against……………on the………………...day
of…………………….20……….., in Suit No.……of...... 20…, in favour of………….for Rs… ;
It is ordered that the
defendant be, and is hereby, prohibited and restrained until the further order
of this Court, from receiving from……………the following property in the possession
of the said,...............that is to say,… to which the defendant is entitled,
subject to any claim of the said……………, and the said………is hereby prohibited and
restrained, until the further order of this Court, from delivering the said
property to any person or persons whomsoever.
GIVEN under my hand and the
seal of Court, this………………….day of………….20……………….
Judge.
[No. 16A
AFFIDAVIT
OF ASSETS TO BE MADE BY A JUDGMENT-DEBTOR ORDER XXI, RULE 41(2)]
In the Court of
A.B…………………………..
Decree-holder
Vs.
C…………………………… Judgment-debtor
I of state on oath solemn affirmation as
follows:—
(1)
My full name is …………………………………
(Block capitals)
(2)
I live at
(3)
I am
married
single
widower (widow) divorced
(4)
The following persons are dependent upon me:—
(5)
My employment, trade or profession is that
of....................carried on by me at ....................
I am a director of the
following companies:—
(6)
My present annual/monthly/weekly income,
after paying income-tax, is as follows:—
(a)
From my employment, trade or profession Rs.
....................
(b)
From other sources Rs. ....................
(7)
(a)
I own the house in which I live; its value is Rs. ....................
I pay as outgoings by way of
rates, mortgage, interest, etc., the annual sum of Rs. ....................
(b) I pay as rent the annual
sum of Rs. ....................
(8)
I possess the following:—
(a)
Banking accounts;
(b)
Stocks and shares;
(c)
Life and endowment policies;
(d)
House property; Give particulars
(e)
Other property;
(f)
Other securities;
(9)
The following debts are due to me:— (give
particulars)
(a)
From of
Rs.
(b)
From of
Rs. (etc.)
Sworn before me, etc.]
No.
17
ATTACHMENT
IN EXECUTION
PROHIBITORY
ORDER WHERE THE PROPERTY CONSISTS OF DEBTS NOT SECURED BY NEGOTIABLE
INSTRUMENTS
(O.
21, r. 46.)
(Title)
To
WHEREAS………………………...has
failed to satisfy a decree passed against on the…………….day of………20……….., in Suit
No……….of 20…………., in favour of……for Rs… ; it is ordered that the defendant be,
and is hereby, prohibited and restrained, until the further order of this
Court, from receiving from you a certain debt alleged now to be due from you to
the said defendant, namely,………… and that you, the said……………...be, and you are
hereby, prohibited and restrained, until the further order of this Court, from
making payment of the said debt, or any part thereof, to any person whomsoever
or otherwise than into this Court.
Given under my hand and the
seal of the Court, this…………..day of……….20…………
Judge.
No.
18
ATTACHMENT
IN EXECUTION PROHIBITORY ORDER, WHERE THE PROPERTY CONSISTS OF SHARES IN THE
CAPITAL OF A CORPORATION
(O.
21, r. 46.)
(Title)
To
Defendant and to… ,
Secretary of Corporation.
WHEREAS………..has failed to
satisfy a decree passed against………………..on the… day of………20……, in Suit No……………of
20…….., in favour of……………….., for Rs… ;
it is ordered that you, the
defendant, be, and you are hereby, prohibited and restrained, until the further
order of this Court, from making and transfer of……………...shares in the aforesaid
corporation, namely,………. or from receiving payment of any dividends thereon;
and you,… ,the Secretary of the said Corporation, are hereby prohibited and
restrained from permitting any such transfer or making any such payment.
GIVEN under my hand and the
seal of the Court, this…………day of…………20……..
Judge.
No.
19
ORDER
TO ATTACH SALARY OF PUBLIC OFFICER OR SERVANT OF RAILWAY COMPANY OR LOCAL
AUTHORITY
(O.
21, r. 48.)
(Title)
To
WHEREAS……………………,
judgment-debtor in the above-named case; is a (describe office of
judgment-debtor) receiving his salary (or allowances) at your hands; and
whereas , decree-holder in the said case, has applied in this Court for the
attachment of the salary (or allowances) of the said to the extent of due to
him under the decree; You are hereby required to withhold the said sum of………..from the salary
of the said… in monthly instalments of……and to remit the said sum (or monthly
instalments) to this Court.
GIVEN under my hand and the
seal of the Court, this……….day of…………20..............
Judge.
No.
20
ORDER
OF ATTACHMENT OF NEGOTIABLE INSTRUMENT
(O.
21, r. 51.)
(Title)
To
The Bailiff of the Court,
WHEREAS an order has been
passed by this Court on the……………..day of……….20… , for the attachment of…………;
You are hereby directed to seize the said and bring the same into Court.
GIVEN under my hand and the
seal of the Court, this………….day of……………20……….
Judge.
No.
21
ATTACHMENT
PROHIBITORY
ORDER, WHERE THE PROPERTY CONSISTS OF MONEY OR OF ANY SECURITY IN THE CUSTODY
OF A COURT OF JUSTICE OR [PUBLIC
OFFICER]
(O.
21, r. 52.)
(Title)
To
Sir,
The plaintiff having
applied, under rule 52 of Order XXI of the Code of Civil Procedure, 1908, for
an attachment of certain money now in yours hands (here state how the money is
supposed to be in the hands of the person addressed, on what account, etc.), I
request that you will hold the said money subject to the further order of this
Court.
I have the honour to
be,
Sir
Your most obedient
Servant.
Dated the……….day of………20………
Judge.
No.
22
NOTICE
OF ATTACHMENT OF A DECREE TO THE COURT WHICH PASSED IT
(O.
21, r. 53.)
(Title)
To
The Judge of the Court
of................
Sir,
I have the honour to inform
you that the decree obtained in your Court on the day
of…........……….20………..by…………….in Suit No…………of 20.....................in which
he was……….………and ………….was…………has been attached by this Court on the application
of……………………., the……….in the suit specified above. You are therefore requested to
stay the execution of the decree of your Court until you receive an intimation
from this Court that the present notice has been cancelled or until execution
of the said decree is applied for by the holder of the decree now sought to be
executed or by his judgment-debtor.
Dated the……………….day
of…….20………..
I have the honour,
etc.
Judge.
No.
23
NOTICE
OF ATTACHMENT OF A DECREE TO THE HOLDER OF THE DECREE
(O.
21, r. 53.)
(Title)
To
WHEREAS an application has
been made in this Court by the decree-holder in the above suit for the
attachment of a decree obtained by you on the………....................day
of……......20. , in the Court of……………….in Suit No…….of 20.........., in
which………….was………….and… was ……………………; It is ordered that you, the said………...,
be, and you are hereby, prohibited and restrained, until the further order of
this Court, from transferring or charging the same in any way.
GIVEN under my hand and the seal
of the Court, this……….day of………….20………….
Judge.
No.
24
ATTACHMENT
IN EXECUTION
PROHIBITORY
ORDER, WHERE THE PROPERTY CONSISTS OF IMMOVABLE PROPERTY
(O.
21, r. 54.)
(Title)
To
. Defendant
WHEREAS you have failed to
satisfy a decree passed against you on the… day of…………..20……….., in Suit
No……….of………20.............. , in favour of for Rs…………; It is ordered that you,
the said , be, and you are hereby, prohibited and restrained, until the further
order of this Court, from transferring or charging the property specified in
the Schedule hereunto annexed, by sale, gift or otherwise, and that all persons
be, and that they are hereby, prohibited from receiving the same by purchase,
or gift otherwise.
[It
is also ordered that you should attend Court on the… day of …………..20………, to
take notice of the date fixed for settling the terms of the proclamation of
sale.]
GIVEN under my hand and seal
of the Court, this…………day of………20………….
Schedule
Judge.
No.
25
ORDER
FOR PAYMENT TO THE PLAINTIFF, ETC., OF MONEY, ETC., IN THE HANDS OF A THIRD
PARTY
(O.21,
r. 56.)
(Title)
To
WHEREAS the following
property has been attached in execution of a decree in Suit No……………….of 20………,
passed on the……………day of 20......... , in favour of for
Rs........................………………….It is ordered that the property so attached,
consisting of Rs…………….in money and Rs in currency-notes, or a sufficient part
thereof to satisfy the said decree, shall be paid over by you, the
said…………..to………….
GIVEN under my hand and the
seal of the Court, this……………………day of………20..........
Judge.
No.
26
NOTICE
TO ATTACHING CREDITOR
(O.
21, r. 58.)
(Title)
To
WHEREAS has made application
to this Court for the removal of attachment on………….placed at your instance in
execution of the decree in Suit No………………of………20......... this is to give you
notice to appear before this Court on………….., the………….day of……..20 , either in
person or by a pleader of the Court duly instructed to support your claim, as
attaching creditor.
GIVEN under my hand and the
seal of the Court, this………..day of……….20...........
Judge.
No.
27
WARRANT
OF SALE OF PROPERTY IN EXECUTION OF A DECREE FOR MONEY
(O.
21, r. 66.)
(Title)
To
The Bailiff of the Court.
THESE are to command you to
sell by auction, after giving day's previous notice, by affixing the same in this
Court-house, and after making due proclamation, the property attached under a
warrant from this Court, dated the…………day of 20................ , in execution
of a decree in favour of……………in Suit No………….of 20 , or so much of the said
property as shall realize the sum of Rs…………………..., being the of the said decree
and costs still remaining unsatisfied.
You are further commanded to
return this warrant on or before the………….day of 20 with an endorsement
certifying the manner in which it has been executed, or the reason why it has
not been executed.
GIVEN under my hand and the
seal of the Court, this………..day of………20...........
Judge.
No.
28
NOTICE
OF THE DAY FIXED FOR SETTLING A SALE PROCLAMATION
(O.
21, r. 66.)
(Title)
To
.........................................................................................................
Judgment-debtor.
WHEREAS in the above-named
suit , the decree-holder, has applied for the sale of……………… You are hereby
informed……………………that the…………..day of………… 20 , has been fixed for settling the
terms of the proclamation of sale.
GIVEN under my hand and the
seal of the Court, this…………… day of…………20………
Judge.
No.
29
PROCLAMATION
OF SALE
(O.
21, r. 66)
(Title)
(1)
Suit No………………….of 20……….., decided by
the………..of………in which was plaintiff and was defendant.—Notice is hereby given
that, under rule 64 of Order XXI of the Code of Civil Procedure, 1908, an order
has been passed by this Court for the sale of the attached property mentioned
in the annexed schedule, in satisfaction of the claim of the decree-holder in
the suit (1) mentioned in the margin, amounting with costs and interest up-to
date of sale to the sum of………………………….
The sale will be by public
auction, and the property will be put up for sale in the lots specified in the
schedule. The sale will be of the property of the judgment-debtors above-named
as mentioned in the schedule below; and the liabilities and claims attaching to
the said property, so far as they have been ascertained, are those specified in
the schedule against each lot.
In the absence of any order
of postponement, the sale will be held by at the monthly sale commencing
at........... O’clock on the……………at…………...., In the event, however, of the debt
above specified and of the costs of the sale being tendered or paid before the
knocking down of any lot, the sale will be stopped.
At the sale the public
generally are invited to bid, either personally or by duly authorized agent. No
bid by, or on behalf of, the judgment-creditors above-mentioned, however, will
be accepted, nor will any sale to them be valid without the express permission
of the Court previously given. The following are the further.
Conditions
of sale
(1)
The particulars specified in the schedule
below have been stated to the best of the information of the Court, but the
Court will not be answerable for any error, mis-statement or omission in this
proclamation.
(2)
The amount by which the biddings are to be
increased shall be determined by the officer conducting the sale. In the event
of any dispute arising as to the amount bid, or as to the bidder, the lot shall
at once be again put up to auction.
(3)
The highest bidder shall be declared to be
the purchaser of any lot, provided always that he is legally qualified to bid,
and provided that it shall be in the discretion of the Court or officer holding
the sale to decline acceptance of the highest bid when the price offered
appears so clearly inadequate as to make it advisable to do so.
(4)
For reasons recorded, it shall be in the
discretion of the officer conducting the sale to adjourn it subject always to
the provisions of rule 69 of Order XXI.
(5)
In the case of movable property, the price of
each lot shall be paid at the time of sale or as soon after as the officer
holding the sale directs, and in default of payment the property shall
forthwith be again put up and re-sold.
(6)
In the case of immovable property, the person
declared to be the purchaser shall pay immediately after such declaration a
deposit of 25 per cent. on the amount of his purchase-money to the officer
conducting the sale, and in default of such deposit the property shall
forthwith be put up again and re-sold.
(7)
The full amount of the purchase-money shall
be paid by the purchaser before the Court closes on the fifteenth day after the
sale of the property, exclusive of such day, or if the fifteenth day be a
Sunday or other holiday, then on the first office day after the fifteenth day.
(8)
In default of payment of the balance of
purchase-money within the period allowed, the property shall be re-sold after
the issue of a fresh notification of sale. The deposit, after defraying the
expenses of the sale, may, if the Court thinks fit, be forfeited to Government
and the defaulting purchaser shall forfeit all claim to the property or to any
part of the sum for which it may be subsequently sold.
Given under my hand and the
seal of the Court, this………….day of……….20……..
Judge.
Schedule
of Property
|
Number of lot
|
Description of pro-
perty to be sold, with the name of each owner where there are more judgment-
debtors than one
|
The
revenue assessed upon the estate or part
of the estate, if the
property to be sold is an interest in an estate or a part of an estate paying
revenue to Government
|
Detail of any encum- brances to which the property is liable
|
Claims,
if any, which have been
put forward to the pro- perty and any other known particulars bearing
on its
nature and value
|
[The
value of the pro- perty as stated
by the decree holder
|
The value
of the property as stated by the judgment- debtor.]
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
No.
30
ORDER
ON THE NAZIR FOR CAUSING SERVICE OF PROCLAMATION OF SALE
(O.
21, r. 66.)
(Title)
To
The Nazir of the Court.
WHEREAS an order has been
made for the sale of the property of the judgment-debtor specified in the
schedule hereunder annexed, and whereas the………….day of………20..........., has
been fixed for the sale of the said property,… copies of the proclamation of
sale are by this warrant made over to you, and you are hereby ordered to have
the proclamation published by beat of drum within each of the properties
specified in the said schedule, to affix a copy of the said proclamation on a
conspicuous part of each of the said properties and afterwards on the
Court-house, and then to submit to this Court a report showing the dates on
which and the manner in which the proclamations have been published.
Dated the………….day
of………………20……….
Schedule
Judge.
No.
31
CERTIFICATE
BY OFFICER HOLDING A SALE OF THE DEFICIENCY OF PRICE ON A RE-SALE OF PROPERTY
BY REASON OF THE PURCHASER'S DEFAULT
(O.
21, r. 71.)
(Title)
Certified that at the
re-sale of the property in execution of the decree in the above-named suit, in
consequence of default on the part of…, purchaser, there was a deficiency in
the price of the said property amounting to Rs , and that the expenses attending
such re-sale amounted to Rs……., making a total of Rs , which sum is recoverable
from the defaulter.
Dated the………….day
of…………20……..
Officers holding the
sale.
No.
32
NOTICE
TO PERSON IN POSSESSION OF MOVABLE PROPERTY SOLD IN EXECUTION
(O.21,
r, 79.)
(Title)
To
WHEREAS has become the
purchaser at a public sale in execution of the decree in the above suit of now
in your possession, you are hereby prohibited from delivering possession of the
said……. to any person except the said………
Given under my hand and the
seal of the Court, this…………day of…………20……..
Judge.
No.
33
PROHIBITORY
ORDER AGAINST PAYMENT OF DEBTS SOLD IN EXECUTION TO ANY OTHER THAN THE
PURCHASER
(O.
21, r. 79.)
(Title)
To
and to
WHEREAS……………has become the
purchaser at a public sale in execution of the decree in the above suit
of………….. being debts due from you……………to you… ; It is ordered that you.......
be, and you are hereby, prohibited from receiving, and you……………………...from
making payment of, the said debt to any person or persons except the said…………..
Given under my hand and the
seal of the Court, this…………day of………..20……..
Judge.
No.
34
PROHIBITORY
ORDER AGAINST THE TRANSFER OF SHARE SOLD IN EXECUTION
(O.
21, r. 79.)
(Title)
To
........................................and..................................,
Secretary of Corporation.
WHEREAS has become the
purchaser at a public sale in execution of the decree, in the above suit, of
certain shares in the above Corporation, that is to say, of standing in the
name of you……………; It is ordered that you… be, and you are hereby, prohibited
from making any transfer of the said shares to any person except the said… ,
the purchaser aforesaid, or from receiving any dividends thereon; and you… , Secretary
of the said Corporation, from permitting any such transfer or making any such
payment to any person except the said , the purchaser aforesaid.
Given under my hand and the
seal of the Court, this………..day of …………..20………
Judge.
No.
35
CERTIFICATE
TO JUDGMENT-DEBTOR AUTHORISING HIM TO MORTGAGE LEASE OR SELL PROPERTY
(O.
21, r. 83.)
(Title)
To
WHEREAS in excecution of the
decree passed in the above suit an order was made on the… day of……………..20……..,
for the sale of the under-mentioned property of the judgment-debtor, and
whereas the Court has, on the application of the said judgment-debtor,
postponed the said sale to enable him to raise the amount of the decree by
mortgage, lease or private sale of the said property or of some part thereof:
This is to certify that the
Court doth hereby authorize the said judgment-debtor to make the proposed
mortgage, lease or sale within a period of……. from the date of this
certificate; provided that all monies payable under such mortgage, lease or
sale shall be paid into this Court and not to the said judgment- debtor.
Description
of property
Given under my hand and the
seal of the Court, this………… day of………..20…..
Judge.
No.
36
NOTICE
TO SHOW CAUSE WHY SALE SHOULD NOT BE SET ASIDE
(O.
21, rr. 90, 92.)
(Title)
To
WHEREAS the under-mentioned
property was sold on the……….day of……………...20…….…..., in execution of the decree
passed in the above named suit, and whereas , the decree-holder [or
judgment-debtor], has applied to this Court to set aside the sale of the said
property on the ground of a material irregularity [or fraud] in publishing [or
conducting] the sale, namely, that…………….
Take notice that if you have
any cause to show why the said application should not be granted, you should
appear with your proofs in this Court on the…………day of…………20. , when the said
application will be heard and determined.
Given under my hand and the
seal of the Court, this…………day of………….20……
Description
of property
Judge.
No.
37
NOTICE
TO SHOW CAUSE WHY SALE SHOULD NOT BE SET ASIDE
(O.
21, rr. 91, 92.)
(Title)
To
WHEREAS……………the purchaser of
the under-mentioned property sold on the… day of ……20… , in execution of the
decree passed in the above-named suit, has applied to this Court to set aside
the sale of the said property on the ground that , the judgment-debtor, had no
saleable interest therein.
Take notice that if you have
any cause, to show why the said application should not be granted, you should
appear with your proofs in this Court on the…………………… day of…………20. , when the
said application will be heard and determined.
Given under my hand and the
seal of the Court, this…………day of…………20…….
Description
of property
Judge.
No.
38
CERTIFICATE
OF SALE OF LAND
(O.
21, r. 94.)
(Title)
This is to certify that has
been declared the purchaser at a sale by public auction on the…………………………day
of………….20………of………………..in execution of decree in this and that the said sale has
been duly confirmed by this Court.
Given under my hand and the
seal of the Court, this…………day of…………20……
Judge.
No.
39
ORDER
FOR DELIVERY TO CERTIFIED PURCHASER OF LAND AT A SALE IN EXECUTION
(O.
21, r. 95.)
(Title)
To
The Bailiff of the Court.
WHEREAS…………………………………..has
become the certified purchaser of at a sale in execution of decree in Suit
No……………of……………..20 ; You are hereby ordered to put the said , the certified
purchaser, as aforesaid, in possession of the same.
Given under my hand and the
seal of the Court, this…………day of…………20……..
Judge.
No.
40
SUMMONS
TO APPEAR AND ANSWER CHARGE OF OBSTRUCTING EXECUTION OF DECREE
(O.
21, r. 97.)
(Title)
To
. . . . . . . . . . . . . .
. . . . .
. . . . . . . . . . . . . .
. . . . .
WHEREAS……………………………,the
decree-holder in the above suit, has complained to this Court that you have
resisted (or obstructed) the officer charged with the execution of the warrant
for possession:
You are hereby summoned to
appear in this Court on the……………day of……………20……......... at A.M., to answer the
said complaint.
Given under my hand and the
seal of the Court, this………………………day of…………20……….
Judge.
No.
41
WARRANT
OF COMMITTAL
(O.
21, r. 98.)
(Title)
To
The Officer in Charge of the
Jail at………………...............................................................
WHEREAS the under-mentioned
property has been decreed to , the plaintiff in this suit, and whereas the
Court is satisfied that without any just cause resisted (or obstructed) and is
still resisting (or obstructing) the said… in obtaining possession of the
property, and whereas the said……………..has made application to this Court that
the said be committed to the Civil prison;
You are hereby commanded and
required to take and receive the said into the civil prison and to keep him
imprisoned therein for the period of days.
GIVEN under my hand and the
seal of the Court, this………….day of……………………20……..
Judge.
No.
42
AUTHORITY
OF THE COLLECTOR TO STAY PUBLIC SALE OF LAND
(Section
72)
(Title)
To
SIR,
..Collector of
In answer to your
communication No.………………., dated representing that the sale in execution of the
decree in this suit of land situate within your district is objectionable, I
have the honour to inform you that you are authorised to make provision for the
satisfaction of the said decree in the manner recommended by you.
I have the honour to
be,
SIR,
Your obedient servant
Judge.
APPENDIX
F
SUPPLEMENTAL
PROCEEDINGS
No.
1
WARRANT
OF ARREST BEFORE JUDGMENT
(O.
38, r. 1.)
(Title)
To
The Bailiff of the Court.
WHEREAS………………………., the
plaintiff in the above suit, claims the sum of Rs. ………… as noted in the margin,
and has proved to the satisfaction of the Court that there is probable cause
for believing that the defendant……………………….. is about to These are to command
you to demand and receive from the said the sum of Rs as sufficient to satisfy
the plaintiff's claim, and unless the said sum of Rs is forthwith delivered to
you by or on behalf of the said to take the said into custody, and to bring him
before this Court, in order that he may show cause why he should not furnish
security to the amount of Rs. ………………….for his personal appearance before the
Court, until such time as the said suit shall be fully and finally disposed of,
and until satisfaction of any decree that may be passed against him in the
suit.
GIVEN under my hand and the
seal of the Court, this……………………. Day of 20…
Judge.
No.
2
SECURITY
FOR APPEARANCE OF A DEFENDANT ARRESTED BEFORE JUDGMENT
(O.
38, r. 2.)
(Title)
WHEREAS at the instance
of………………., the plaintiff in the above suit, the defendant, has been arrested
and brought before the Court;
And whereas on the failure
of the said defendant to show cause why he should not furnish security for his
appearance, the Court has ordered him to furnish such security:
Therefore I have voluntarily
become surety and do hereby bind myself, my heirs and executors, to the said
Court, that the said defendant shall appear at any time when called upon while
the suit is pending and until satisfaction of any decree that may be passed
against him in the said suit; and in default of such appearance I bind myself,
my heirs and executors, to pay to the said Court, at its order, any sum of
money that may be adjudged against the said defendant in the said suit.
Witness my hand at………………this……………day
of………….20……..
(Signed.)
Witnesses.
1.
2.
No.
3
SUMMONS
TO DEFENDANT TO APPEAR ON SURETY’S APPLICATION FOR DISCHARGE
(O
. 38, r. 3.)
(Title)
To
. . . . . . . . . . . . . .
. . . . .
. . . . . . . . . . . . . .
. . . . .
WHEREAS…………………………………, who
became surety on the………………………day of………. 20….for your appearance in the above
suit, has applied to this Court to be discharged from his obligation.
You are hereby summoned to
appear in this Court in person on the day of………………20……at A. M., when the said
application, will be heard and determined.
GIVEN under my hand and the
seal of the Court, this……………day of…………20…..
Judge.
No.
4
ORDER
FOR COMMITTAL
(O.
38, r. 4.)
(Title)
To
. . . . . . . . . . . . . .
. . . . .
. . . . . . . . . . . . . .
. . . . .
WHEREAS , plaintiff in this
suit, has made application to the Court that security be taken for the
appearance of , the defendant, to answer any judgment that may be passed
against him in the suit; and whereas the Court has called upon the defendant to
furnish such security, or to offer a sufficient deposit in lieu of security,
which he has failed to do; it is ordered that the said defendant…… be committed
to the civil prison until the decision of the suit; or, if judgment be
pronounced against him, until satisfaction of the decree.
GIVEN under my hand and the
seal of the Court, this………….day of…………….20………
Judge.
No.
5
ATTACHMENT
BEFORE JUDGMENT, WITH ORDER TO CALL FOR SECURITY FOR FULFILMENT OF DECREE
(O.
38, r. 5.)
(Title)
To
The Bailiff of the Court.
WHEREAS has proved to the
satisfaction of the Court that the defendant in the above suit ;
These are to command you to
call upon the said defendant on or before the…………….day of………………….20 either to
furnish security for the sum of rupees ……………to produce and place at the
disposal of this Court when required or the value thereof, or such portion of
the value as may be sufficient to satisfy any decree that may be passed against
him; or to appear and show cause why he should not furnish security; and you
are further ordered to attach the said… and keep the same under safe and secure
custody until the further order of the Court; and you are further commanded to
return this warrant on or before the… day of……. 20 , with an endorsement
certifying the date on which and the manner in which it has been executed, or
the reason why it has not been executed.
GIVEN under my hand and the
seal of the Court, this………………..day of…………20……….
Judge.
No.
6
SECURITY
FOR THE PRODUCTION OF PROPERTY
(O.
38, r. 5.)
(Title)
WHEREAS at the instance
of………………………., the plaintiff in the above suit, …………………... the defendant has
been directed by the Court to furnish security in the sum of Rs to produce and
place at the disposal of the Court the property specified in the schedule
hereunto annexed;
Therefore I have voluntarily
become surety and do hereby bind myself, my heirs and executors, to the said
Court, that the said defendant shall produce and place at the disposal of the
Court, when required, the property specified in the said schedule, or the value
of the same, or such portion thereof as may be sufficient to satisfy the
decree; and in default of his so doing, I bind myself, my heirs and executors,
to pay to the said Court, at its order, the said sum of Rs or such sum not
exceeding the said sum as the said Court may adjudge.
Schedule
Witness my hand
at…………………..this…………..day of……………………..20………
Witnesses.
1.
2.
(Signed.)
No.
7
ATTACHMENT
BEFORE JUDGMENT, ON PROOF OF FAILURE TO FURNISH SECURITY
(O.
38, r. 6.)
(Title)
To
The Bailiff of the Court.
WHEREAS……………………, the
plaintiff in this suit, has applied to the Court to call upon…….. the
defendant, to furnish security to fulfil any decree that may be passed against
him in the suit, and whereas the Court has called upon the said to furnish such
security, which he has failed to do; these are to command you to attach…………..,
the property of the said………., and keep the same under safe and secure custody
until the further order of the Court, and you are further commanded to return
this warrant on or before the…………..day of…………….20 with an endorsement
certifying the date on which and the manner in which it has been executed, or
the reason why it has not been executed.
GIVEN under my hand and the
seal of the Court, this……………….day of…………20………
Judge.
No.
8
TEMPORARY
INJUNCTIONS
(O.
39, r. 1.)
(Title)
Upon motion made unto this
Court by Pleader of [or Counsel for] the plaintiff A. B., and upon reading the
petition of the said plaintiff in this matter filed [this day] [or the plaint
filed in this suit on the ………………………day of……………………, or the written statement of
the said plaintiff filed on the……………day of………..] and upon hearing the evidence
of…………and… in support thereof [if after notice and defendant not appearing :
add, and also, the evidence of ……………………as to service of notice of this motion
upon the defendant C. D.]: This Court doth order that an injunction be awarded
to restrain the defendant C. D. his servants, agents and workmen, from pulling
down, or suffering to be pulled down, the house in the plaint in the said suit
of the plaintiff mentioned [or in the written statement, or petition, of the
plaintiff and evidence at the hearing of this motion mentioned], being No. 9,
Oilmongers Street, Hindupur, in a Taluk of , and from selling the materials
where of the said house is composed, until the hearing of this suit or until
the further order of this Court. Dated this………………….day of………….20…….
Judge.
[Where the injunction is
sought to restrain the negotiation of a note or bill, the ordering part of the
order may run thus:—]
………………to restrain the
defendant…………….. and… from parting without of the custody of them or any of
them or endorsing, assigning or negotiating the promissory note [or bill of
exchange] in question dated on or about the… , etc., mentioned in the
plaintiff's plaint [or petition] and the evidence heard at this motion until
the hearing of this suit, or until the further order of this Court.
[In Copyright cases] to
restrain the defendant C.D., his servants, agents or workmen fromprinting,
publishing or vending a book, called or any part thereof, until the, etc.
[Where part only of a book
is to be restrained]
.………….to restrain the
defendant C.D., his servants, agents or workmen, from printing, publishing,
selling or otherwise disposing of such parts of the book in the plaint [or
petition and evidence, etc.] mentioned to have been published by the defendant
as hereinafter specified, namely, that part of the said book which is
entitled………..and also that part which is entitled… [or which is contained in
page………..to page both inclusive] until , etc.
[In Patent cases] to
restrain the defendant C. D., his agents, servants and workmen, from making or
vending any perforated bricks [or as the case maybe] upon the principle of the
inventions in the plaintiff's plaint [or petition, etc., or written statement,
etc.,] mentioned, belonging to the plaintiffs, or either of them, during the
remainder of the respective terms of the patents in the plaintiff's plaint [or
as the case may be] mentioned, and from counterfeiting, imitating or resembling
the same inventions, or either of them, or making any addition thereto, or
subtraction therefrom, until the hearing, etc.
[In cases of Trade marks] to
restrain the defendant C.D., his servants, agents or workmen, from selling, or
exposing for sale, or procuring to be sold, any composition or blacking [or as
the case may be] described as or purporting to be blacking manufactured by the
plaintiff A.B., in bottles having affixed thereto such labels as in the
plaintiff's plaint [or petition, etc.] mentioned, or any other labels so
contrived or expressed as, by colourable imitation or otherwise, to represent
the composition or blacking sold by the defendant to be the same as the
composition or blacking manufactured and sold by the plaintiff A.B., and from
using trade-cards so contrived or expressed as to represent that any
composition or blacking sold or proposed to be sold by the defendant is the
same as the composition or blacking manufactured or sold by the plaintiff A. B.
until the etc.
[To restrain a partner from
in any way interfering in the business]
to restrain the defendant
C.D., his agents, and servants, from entering into any contract, and from
accepting, drawing, endorsing or negotiating any bill of exchange, note or
written security in the name of the partnership-firm of B. and D., and from
contracting any debt, buying and selling any goods, and from making or entering
into any verbal or written promise, agreement or undertaking, and from doing,
or causing to be done, any act, in the name or on the credit of the said
partnership-firm of B. and D., or whereby the said partnership- firm can or may
in any manner become or be made liable to or for the payment of any sum of
money, or for the performance of any contract, promise or undertaking until
the, etc.
No.
[9]
APPOINTMENT
OF A RECEIVER
(O.40,
r.1.)
(Title)
To
. . . . . . . . . . . . . .
. . . . .
. . . . . . . . . . . . . .
. . . . .
WHEREAS……………….has been
attached in execution of a decree passed in the above suit on the...........
day of…………….20…….., in favour of……….; You are hereby (subject to your giving
security to the satisfaction of the Court) appointed receiver of the said property
under Order XL of the Code of Civil Procedure, 1908, with full powers under the
provisions of that Order.
You are required to render a
due and proper account of your receipts and disbursements in respect of the
said property on............You will be entitled to remuneration at the rate of
per cent. Upon your receipts under the authority of this appointment.
GIVEN under my hand and the
seal of the Court, this…………..day of 20
Judge.
No.
[10]
BOND
TO BE GIVEN BY RECEIVER
(O.
40, r. 3.)
(Title)
KNOW all men by these
presents, that we,……… and……………..and , are jointly and severally bound
to…………..of the Court of………in Rs…………….. to be paid to the said or his successor
in office for the time being. For which payment to be made we bind ourselves,
and each of us, in the whole, our and each of our heirs, executors and
administrators, jointly and severally, by these presents.
Dated this…………..day
of……………20………..
WHEREAS a plaint has been
filed in the Court by……….against for the purpose of [here insert the object of
suit]:
And whereas the said… has
been appointed, by order of the above-mentioned Court, to receive the rents and
profits of the immovable property and to get in the outstanding movable
property of in the said plaint named:
Now the condition of this
obligation is such, that if the above-bounden… shall duly account for all and
every the sum and sums of money which he shall so receive on account of the
rents and profits of the immovable property, and in respect of the movable
property, of the said….......at such periods as the said Court shall appoint,
and shall duly pay the balances which shall from time to time be certified to
be due from him as the said Court hath directed or shall hereafter direct, then
this obligation shall be void, otherwise it shall remain in full force.
Signed and delivered by the
above-bounden in the presence of……………………
NOTE.—If deposit of money is
made, the memorandum thereof should follow the terms of the condition of the
bond.
APPENDIX
G
APPEAL,
REFERENCE AND REVIEW
No.
1
MEMORANDUM
OF APPEAL
(O.
41, r. 1.)
(Title)
The...............................................above-named
appeals to the……………………………………... Court at…………………from the decree of……………in Suit
No………………of 20…… dated the……………….day of………………20 ,and sets forth the following
grounds of objection to the decree appealed from, namely:—
No.
2
SECURITY
BOND TO BE GIVEN ON ORDER BEING MADE TO STAY EXECUTION OF DECREE
(O.
41, r. 5.)
(Title)
To
. . . . . . . . . . . . . .
. . . . .
. . . . . . . . . . . . . .
. . . . .
This security bond on stay
of execution of decree executed by witnesseth:—
That……….., the plaintiff in
Suit No.…………………of............................20. having sued ……………….., the
defendant, in this Court and a decree having been passed on the… day
of………………20……, in favour of the plaintiff, and the defendant having preferred an
appeal from the said decree in the Court, the said appeal is still pending.
Now the plaintiff
decree-holder having applied to execute the decree, the defendant has made an
application praying for stay of execution and has been called upon to furnish
security. Accordingly I, of my own free will, stand security to the extent of
Rs. ………………..,mortgaging the properties specified in the schedule hereunto
annexed, and covenant that if the decree of the first Court be confirmed or
varied by the Appellate Court 'the said defendant shall duly act in accordance
with the decree of the Appellate Court and shall pay whatever may be payable by
him thereunder, and if he should fail therein then any amount so payable shall
be realized from the properties hereby mortgaged, and if the proceeds of the
sale of the said properties are insufficient to pay the amount due, I and my
legal representatives will be personally liable to pay the balance. To this
effect I execute this security bond this………..day of………………20……….
Schedule
(Signed.)
Witnessed by
1.
2.
No.
3
SECURITY
BOND TO BE GIVEN DURING THE PENDENCY OF APPEAL
(O.
41, r. 6.)
(Title)
To
. . . . . . . . . . . . . .
. . . . .
. . . . . . . . . . . . . .
. . . . .
THIS security bond on stay
of execution of decree executed by witnesseth:—
That………………., the plaintiff
in Suit No……………………of……………………20……. having sued………………, defendant,, in this Court
and a decree having been passed on the………………….day of 20……in favour of the plaintiff,
and the defendant having preferred an appeal from the said decree in the Court,
the said appeal is still pending.
Now the plaintiff
decree-holder has applied for execution of the said decree and has been called
upon to furnish security. Accordingly I, of my own free will, stand security to
the extent of Rs , mortgaging the properties specified in the schedule hereunto
annexed, and covenant that if the decree of the first Court be reversed or
varied by the Appellate Court, the plaintiff shall restore any property which
may be or has been taken in execution of the said decree and shall duly act in
accordance with the decree of the Appellate Court and shall pay whatever may be
payable by him thereunder, and if he should fail therein then any amount so
payable shall be realised from the properties hereby mortgaged, and if the
proceeds of the sale of the said properties are insufficient to pay the amount
due, I and my legal representatives will be personally liable to pay the
balance. To this effect I execute this security bond this……………………day of
……………….20…….
Schedule
(Signed.)
Witnessed by
1.
2.
No.
4
SECURITY
FOR COSTS OF APPEAL
(O.
41, r. 10.)
(Title)
To
. . . . . . . . . . . . . .
. . . . .
. . . . . . . . . . . . . .
. . . . .
This security bond for costs
of appeal executed by witnesseth:—
This appellant has preferred
an appeal from the decree in Suit No. of…………………20……, against the respondent,
and has been called upon to furnish security. Accordingly I, of my own free
will, stand security for the costs of the appeal, mortgaging the properties
specified in the schedule hereunto annexed. I shall not transfer the said
properties or any part thereof, and in the event of any default on the part of
the appellant, I shall duly carry out any order that may be made against me
with regard to payment of the costs of appeal. Any amount so payable shall be
realised from the properties hereby mortgaged, and if the proceeds of the sale
of the said properties are insufficient to pay the amount due I and my legal
representatives will be personally liable to pay the balance. To this effect, I
execute this security bond this ………………….day of…………….20……..
Schedule
(Signed.)
Witnessed by
1.
2.
No.
5
INTIMATION
TO LOWER COURT OF ADMISSION OF APPEAL
(O.
41, r. 13.)
(Title)
To
. . . . . . . . . . . . . .
. . . . .
. . . . . . . . . . . . . .
. . . . .
You are hereby directed to
take notice that……………………, the… in the above suit, has preferred an appeal to
this Court from the decree passed by you therein on the…………............... day
of…………………..20………….
You are requested to send
with all practicable despatch all material papers in the suit. Dated
the………………day of………………..20……………….
Judge.
No.
6
NOTICE
TO RESPONDENT OF THE DAY FIXED FOR THE HEARING OF THE APPEAL
(O.
41, r. 14.)
(Title)
Appeal from the……………of the
Court…………………………..of………………………....... dated……………………the……………………..day of…………….20………
To
Respondent
Take notice that an appeal
from the decree of in this case has been presented by…………………………………and
registered in this Court, and that the…………day of……… 20 has been fixed by this
Court for the hearing of this appeal.
If no appearance is made on
your behalf by yourself, your pleader, or by some one by law authorised to act
for you in this appeal, it will be heard and decided in your absence.
GIVEN under my hand and the
seal of the Court, this…………day of……………………20......
Judge.
[NOTE—If a stay of execution
has been ordered intimation should be given of the fact on this notice.]
No.
7
NOTICE
TO A PARTY TO A SUIT NOT MADE, A PARTY TO THE APPEAL BUT JOINED BY THE COURT AS
A RESPONDENT
(O.
41, r. 20.)
(Title)
To
. . . . . . . . . . . . . .
. . . . .
. . . . . . . . . . . . . .
. . . . .
WHEREAS you were a party in
Suit No…………………….of…………………20………, in the Court of,………………………., and whereas the…
has preferred an appeal to this Court from the decree passed against him in the
said suit and it appears to this Court that you are interested in the result of
the said appeal:
This is to give you notice
that this Court has directed you to be made a respondent in the said appeal and
has adjourned the hearing thereof till the…………………….day of……………..20 ,at……..A. M.
If no appearance is made on your behalf on the said day and at the said hour
the appeal will be heard and decided in your absence.
GIVEN under my hand and the
seal of the Court, this…………..day of…………….20……….……….
Judge.
No.
8
MEMORANDUM
OF CROSS OBJECTION
(O.
41, r. 22.)
(Title)
WHEREAS the………………has
preferred an appeal to the…………………Court…………… at…………from the decree of…………in Suit
No………………………of……………20………. dated the……………… day of…………………………..20 , and whereas
notice of the day fixed for hearing the appeal was served………………………………..on the
day of……………………20……….., the files this memorandum of cross objection under rule
22 of Order XLI of the Code of Civil Procedure, 1908, and sets forth the
following grounds of objection to the decree appealed from, namely:—
No.
9
DECREE
IN APPEAL
(O.
41, r. 35.)
(Title)
Appeal No. …………………….of
...........20…..............................from the decree of the Court of
………………..dated the……………….day of……………………20…………..
Memorandum
of Appeal.
Plaintiff.
versus
Defendant.
The………………………..above-named
appeals to the…………………….Court at from the decree of………………….in the above suit
dated the……………………….day of…………… 20 , for the following reasons, namely:—
This appeal coming on for
hearing on the…..……………..day of…………….20 , before in the presence of………….or the
appellant and of……………………….for the respondent, it is ordered—
The costs of this appeal, as
detailed below, amounting to Rs… are to be paid by………………………The cost of the
original suit are to be paid by………………………..
GIVEN under my hand
this………………………..day of………………………20………….
Judge.
Costs
of Appeal
|
Appellant
|
Amount
|
Respondent
|
Amount
|
|
1. Stamp for memorandum of appeal…
2. Do. for
power…………
3. Service of processes……….
4. Pleader's fee on Rs.
…………..
|
Rs.
|
A.
|
P.
|
Stamp for power………
Do. for petition……..
Service
of processes….. Pleader’s fee on Rs. .…..
|
Rs.
|
A.
|
P.
|
|
Total
|
|
|
|
Total
|
|
|
|
No.
10
APPLICATION
TO APPEAL IN forma pauperis
(O.
44, r. 1.)
(Title)
I…………………the… above-named,
present the accompanying memorandum of appeal from the decree in the above suit
and apply to be allowed to ap peal as a pauper.
Annexed is a full and true
schedule of all the movable and immovable property belonging to me with the
estimated value thereof.
Dated the…………………….day
of…………………..20……………….
(Signed.)
[NOTE.—Where the application
is by the plaintiff he should state whether he applied and was allowed to sue
in the Court of first instance as a pauper.]
No.
11
NOTICE
OF APPEAL IN forma pauperis
(O.
44, r. 1.)
(Title)
WHEREAS the above-named… has
applied to be allowed to appeal as a pauper from the decree in the above suit
dated the…………………..day of…………........... 20…..……………… and whereas the……………………day
of……………20 , has been fixed for hearing the application, notice is hereby given
to you that if you desire to show cause why the applicant should not be allowed
to appeal as a pauper an opportunity will be given to you of doing so on the
afore-mentioned date.
GIVEN under my hand and the
seal of the Court, this…………….day of………………………..20....
Judge.
No.
12
NOTICE
TO SHOW CAUSE WHY A CERTIFICATE OF APPEAL TO THE [SUPREME
COURT] SHOULD NOT BE GRANTED
(O.
45, r. 3.)
(Title)
To
. . . . . . . . . . . . . .
. . . . .
. . . . . . . . . . . . . .
. . . . .
[TAKE
notice that has applied to this Court for a certificate—
(i)
that the case involves a substantial question
of law of general importance, and
(ii)
that in the opinion of this Court the said
question needs to be decided by the Supreme Court.]
The……………………………day
of…………………..20 is fixed for you to show cause why the Court should not grant the
certificate asked for.
GIVEN under my hand and the
seal of the Court, this…………….day of…………………………20....
Registrar.
No.
13
NOTICE
TO RESPONDENT OF ADMISSION OF APPEAL TO THE [SUPREME
COURT]
(O.
45, r. 8.)
(Title)
To
. . . . . . . . . . . . . .
. . . . .
. . . . . . . . . . . . . .
. . . . .
WHEREAS…………………………………., the…
in the above case, has furnished the security and made the deposit required by
Order XLV, rule 7, of the Code of Civil Procedure, 1908:
Take notice that the appeal
of the said… to [the
Supreme Court] has been admitted on the…………………day of…………………20………
GIVEN under my hand and the
seal of the Court, this…………….. day of 20…
Registrar.
No.
14
NOTICE
TO SHOW CAUSE WHY A REVIEW SHOULD NOT BE GRANTED
(O.
47, r. 4.)
(Title)
To
TAKE notice that has applied
to this Court for a review of its decree passed on the………………………day
of……………………………. 20 in the above case. The ……………….day of……………………..20 fixed for
you to show cause why the Court should not grant a review of its decree in this
case.
GIVEN under my hand and the
seal of the Court, this…………….. day of…………………….20....
Judge.
APPENDIX
H
MISCELLANEOUS
No.
1
AGREEMENT
OF PARTIES AS TO ISSUES TO BE TRIED
(O.
14, r. 6.)
(Title)
WHEREAS we, the parties in the
above suit, are agreed as to the question of fact [ or of law] to be decided
between us and the point at issue between us is whether a claim founded on a
bond, dated the day of……………………….20…………………….and filed as Exhibit………………………..in
the said suit, is or is not beyond the statute of limitation (or state the
point at issue whatever it may be):
We therefore severally bind
ourselves that, upon the finding of the Court in the negative [ or affirmative]
of such issue,…………………….will pay to the said…………..the sum of Rupees…………………. (or
such sum as the Court shall hold to be due thereon), and I, the said , will
accept the said sum of Rupees………………..(or such sum as the Court shall hold to be
due) in full satisfaction of my claim on the bond aforesaid [or that upon such finding
I, the said………………….., will do or abstain from doing, etc., etc.]
Witnesses:—
1.
2.
Plaintiff.
versus
Defendant.
Dated the……………………………….day
of……………………20……………..
No.
2
NOTICE
OF APPLICATION FOR THE TRANSFER OF A SUIT TO ANOTHER COURT FOR TRIAL
(Section
24.)
In the Court of the District
Judge of………………………..No………………………of.......20…….
To
WHEREAS an application,
dated the………………….day of……………………….20 , has been made to this Court
by…………….the………………………….in Suit No of 20……………now pending in the Court of the…………at
in which …………………is plaintiff and… is defendant, for the transfer of the suit
for trial to the Court of the……………….at :—
You are hereby informed that
the……………..day of……………………20 has been fixed for the hearing of the application,
when you will be heard if you desire to offer any objection to it.
GIVEN under my hand and the
seal of the Court, this………….day of………………………20………
Judge.
[No. 2A
LIST
OF WITNESSES PROPOSED TO BE CALLED BY PLAINTIFF/DEFENDANT
(O.
XVI, r. 1.)
|
Name
of the
party which
proposes to
call
the witness
|
Name
and address of the witness
|
Remarks]
|
No.
3
NOTICE
OF PAYMENT INTO COURT
(O.
24, r.2.)
(Title)
TAKE notice that the
defendant has paid into Court Rs. and says that that sum is sufficient to
satisfy the plaintiff's claim in full.
X Y, Pleader for the
defendant.
To Z., Pleader for the
plaintiff.
No.
4
NOTICE
To SHOW CAUSE (GENERAL FORM)
(Title)
To
WHEREAS the above-named… has
made application to this Court that ;
You are hereby warned to
appear in this Court in person or by a pleader duly instructed on the
…................................ day of…………………20......, at O’clock in the
forenoon, to show cause against the application, failing wherein, the said
application will be heard and determined ex parte.
GIVEN under my hand and the
seal of the Court, this………………day of……….20………….
Judge.
No.
5
PLAINTIFF
LIST
OF DOCUMENTS PRODUCED BY
(O.
13, r. 1.)
(Title)
DEFENDANT
|
No.
|
Description of document.
|
Date, if any which
the document bears.
|
Signature of party or pleader.
|
|
1
|
2
|
3
|
4
|
|
|
|
|
|
No.
6
NOTICE
TO PARTIES OF THE DAY FIXED FOR EXAMINATION OF A WITNESS ABOUT TO LEAVE THE
JURISDICTION
(O.
18, r. 16.)
(Title)
To
Plaintiff (or defendant).
.................................
.................................
WHEREAS in the above suit
application has been made to the Court by that the examination of…………………, a
witness required by the said… , in the said suit may be taken immediately; and
it has been shown to the Court's satisfaction that the said witness is about to
leave the Court's jurisdiction (or any other good and sufficient cause to be
stated);
Take notice that the
examination of the said witness will be taken by the Court on the……………………day
of……………………………20…………
Dated the…………day
of…………………………………….20…………..
Judge.
No.
7
COMMISSION
TO EXAMINE ABSENT WITNESS
(O.
26, rr. 4, 18.)
(Title)
WHEREAS the evidence
of………………………………………is required by the………………. in the above suit; and whereas… ;
you are requested to take the evidence on interrogatories [or viva voce] of
such witness… and you are hereby appointed Commissioner for that purpose. The
evidence will be taken in the presence of the parties or their agents if in
attendance, who will be at liberty to question the witness on the points
specified, and you are further requested to make return of such evidence as
soon as it may be taken.
Process to compel the
attendance of the witness will be issued by any Court having jurisdiction on
your application.
A sum of Rs , being your fee
in the above, is herewith forwarded.
GIVEN under my hand and the
seal of the Court, this.…………………day of……………….20……...
Judge.
No.
8
LETTER
OF REQUEST
(O.
26, r.5.)
(Title)
(Heading:—To the President
and Judges of, etc., etc., or as the case may be.)
WHEREAS a suit is now
pending in the in which A. B. is plaintiff and C.D. is defendant; And in the said
suit the plaintiff claims.
(Abstract
of claim.)
And whereas it has been
represneted to the said Court that it is necessary for the purposes of justice
and for the due determination of the matters in dispute between the parties,
that the following persons should be examined as witnesses upon oath touching
such matters, that is to say:
E.
F., of
G.
H., of
and
I.
J., of
And it appearing that such
witnesses are resident within the jurisdiction of your honourable Court;
Now I…………………………………., as
the………………………………. of the said Court, have the honour to request, and do hereby
request, that for the reasons aforesaid and for the assistance of the said
Court, you, as the President and Judges of the said……………….or some one or more
of you, will be pleased to summon the said witness (and such other witnesses as
the agents of the said plaintiff and defendant shall humbly, request you in
writing so to summon) to attend at such time and place as you shall appoint
before some one or more of you or such other person as according to the
procedure of your Court is competent to take the examination of witnesses, and
that you will cause such witnesses to be examined upon the interrogatories
which accompany this letter of request (or viva voce) touching the said matters
in question in the presence of the agents of the plaintiff and defendant, or
such of them as shall, on due notice given, attend such examination.
And I further have the
honour to request that you will be pleased to cause the answers of the said
witnesses to be reduced into writing, and all books, letters, papers and
documents produced upon such examination to be duly marked for identification,
and that you will be further pleased to authenticate such examination by the
seal of your tribunal, or in such other way as is in accordance with your
procedure, and to return the same, together with such request in writing, if
any, for the examination of other witnesses to the said Court.
Note.—If the request is
directed to a Foreign Court, the words “through [the
Ministry of External Affairs of the Government of India] for transmission”
should be inserted after the words “other witnesses” in the last line of this
form.
No.
9
COMMISSION
FOR A LOCAL INVESTIGATION, OR TO EXAMINE ACCOUNTS
(O.
26, rr. 9,11.)
(Title)
To
WHEREAS it is deemed
requisite, for the purposes of this suit, that a commission
for......................... should be issued; You are hereby appointed
Commissioner for the purpose of............................................
Process to compel the
attendance before you of any witnesses, or for the production of any documents
whom or which you may desire to examine or inspect, will be issued by any Court
having jurisdiction on your application.
A sum of Rs. , being your
fee in the above, is herewith forwarded.
GIVEN under my hand and the
seal of the Court, this.............................day of 20
Judge.
No.
10
COMMISSION
TO MAKE A PARTITION
(O.
26, r. 13.)
(Title)
To
WHEREAS it is deemed
requisite for the purposes of this suit that a commission should be issued to
make the partition or separation of the property specified in, and according to
the rights as declared in, the decree of this Court, dated
the..............................day
of.........................................20 ;You are hereby appointed
Commissioner for the said purpose and are directed to make such inquiry as may
be necessary, to divide the said property according to the best of your skill
and judgment in the shares set out in the said decree, and to allot such shares
to be several parties. You are hereby authorized to award sums to be paid to
any party by any other party for the purpose of equalizing the value of the
shares.
Process to compel the
attendance before you of any witness, or for the production of any documents,
whom or which you may desire to examine or inspect, will be issued by any Court
having jurisdiction on your application.
A sum of Rs. , being your
fee in the above, is herewith forwarded.
GIVEN under my hand and the
seal of the Court, this........................... day of 20.
Judge.
[No.11
NOTICE
TOCERTIFICATED, NATURAL, OR, de facto GUARDIAN
(O.
XXXII, r. 3.)
(Title)
(Certificated/Natural/de
facto Guardian)
To
WHEREAS an application has
been presented on the part of the plaintiff/on
behalf of the minor defendant/in
the above suit for the appointment of a guardian for the suit for the minor
defendant............., you (insert the name of the guardian appointed or
declared by Court, or natural guardian, or the person in whose care the minor
is) are hereby required to take notice that unless you appear before this Court
on or before the day appointed for the hearing of the case and stated in the
appended summons, and express your consent to act as guardian for the suit for
the minor, the Court will proceed to appoint some other person to act as a
guardian for the minor, for the purposes of the said suit.
GIVEN under my hand and the
seal of the Court, this........................... day of 20.
Judge.
No.
11A
NOTICE
TO MINOR DEFENDANT
(Order
XXXII, r. 3.)
(Title)
To
Minor Defendant
WHEREAS an application has
been presented on the part of the plaintiff in the above suit for the
appointment of
as guardian for the suit for you, the minor defendant, you are hereby required
to take notice to appear in this Court in person on the. Day of..........20......................at......................O’clock
in the forenoon to show cause against the application, failing which the said
application will be heard and determined ex parte.
GIVEN under my hand and the
seal of the Court, this......................day of ...................20 .....
Judge. ]
No.
12
NOTICE
TO OPPOSITE PARTY OF DAY FIXED FOR HEARING EVIDENCE OF PAUPERISM
(O.
33, r.6.)
(Title)
To
WHEREAS
...............................................................................................................................................
has applied to this Court for permission to institute a suit against in forma
pauper is under Order XXXIII of the Code of Civil Procedure, 1908; and whereas
the Court sees no reason to reject the application; and whereas the.........day
of...........20.....................has been fixed for receiving such evidence
as the applicant may adduce in proof of his pauperism and for hearing any
evidence which may be adduced in disproof thereof:
Notice is hereby given to
you under rule 6 of Order XXXIII that in case you may wish to offer any
evidence to disprove the pauperism of the applicant, you may do so on appearing
in this Court on the said ..................day of 20 .
GIVEN under my hand and the
seal of the Court, this......................day of 20 .
Judge.
No.
13
NOTICE
TO SURETY OF HIS LIABILITY UNDER A DECREE
(Section
145)
(Title)
To
...........................
...........................
WHEREAS
you..........................................did on. become liable as surety
for the performance of any decree which might be passed against the
said.............................defendant in the above suit; and whereas a
decree was passed on the........day of..........................20 against the
said defendant for the payment
of..........................................................and whereas
application has been made for execution of the said decree against you:
Take notice that you are
hereby required on or before the................... day of............................
20...... to show cause why the said decree should not be executed against you,
and if no sufficient cause shall be, within the time specified, shown to the
satisfaction of the Court, an order for its execution will be forthwith issued
in the terms of the said application.
GIVEN under my hand and the
seal of the Court, this........................... day of 20.
Judge.
|
No. 14
REGISTER OF CIVIL SUITS (O. 4, R.2.)
COURT OF THE OF AT
Register of civil suits in the year 20
|
|
Claim
|
Plaintiff
|
Defendant
|
|
|
Appearanc
|
Judgment
|
Appeal
|
Execution
|
Return of
Execution
|
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Minute of other
Return than Payment or Arrest, and date to
every Return
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Note.—Where there
are numerous plaintiffs, or numerous defendants, the name of the first
Plaintiff only, or the first defendant only, as the case
may be, need be entered in the register.
|
|
No. 15
REGISTER OF APPEALS (O. 41, r.9.)
COURT (OR HIGH COURT) AT
Register of appeals from decrees in the
year 20 ………
|
|
|
|
Appellant
|
Respondent
|
Decree appealed from
|
Appearance
|
Judgment
|
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[APPENDIX-I
STATEMENT
OF TRUTH
(Under
First Schedule, Order VI- Rule 15A and Order XI- Rule 3)
I the deponent do hereby
solemnly affirm and declare as under:
(1)
I am the party in the above suit and
competent to swear this affidavit.
(2)
I am sufficiently conversant with the facts
of the case and have also examined all relevant documents and records in
relation thereto.
(3)
I say that the statements made in paragraphs
are true to my knowledge and statements made in -----paragraphs are based on
information received which I believe to be correct and statements made in ---
paragraphs are based on legal advice.
(4)
I say that there is no false statement or
concealment of any material fact, document or record and I have included
information that is according to me, relevant for the present suit.
(5)
I say that all documents in my power,
possession, control or custody, pertaining to the facts and circumstances of
the proceedings initiated by me have been disclosed and copies thereof annexed
with the plaint, and that I do not have any other documents in my power,
possession, control or custody.
(6)
I say that the above-mentioned pleading
comprises of a total of pages, each of which has been duly signed by me.
(7)
I state that the Annexures hereto are true
copies of the documents referred to and relied upon by me.
(8)
I say that I am aware that for any false
statement or concealment, I shall be liable for action taken against me under
the law for the time being in force.
Place:
Date:
DEPONENT
VERIFICATION
I, ………………………. do hereby
declare that the statements made above are true to my knowledge.
Verified at [place] on this
[date]
DEPONENT.]
STATE
AMENDMENT
Jammu
and Kashmir and Ladakh (UTs).—
After Appendix H, insert the
following Appendix, namely:—
APPENDIX-I
STATEMENT
OF TRUTH
(Under
First Schedule, Order VI- Rule 15A and Order XI- Rule 3)
I the deponent do hereby
solemnly affirm and declare as under:
(1)
I am the party in the above suit and
competent to swear this affidavit.
(2)
I am sufficiently conversant with the facts
of the case and have also examined all relevant documents and records in
relation thereto.
(3)
I say that the statements made in
-----paragraphs are true to my knowledge and statements made in paragraphs are
based on information received which I believe to be correct and statements made
in paragraphs are based on legal advice.
(4)
I say that there is no false statement or
concealment of any material fact, document or record and I have included
information that is according to me, relevant for the present suit.
(5)
I say that all documents in my power,
possession, control or custody, pertaining to the facts and circumstances of
the proceedings initiated by me have been disclosed and copies thereof annexed
with the plaint, and that I do not have any other documents in my power,
possession, control or custody.
(6)
I say that the above-mentioned pleading
comprises of a total of pages, each of which has been duly signed by me.
(7)
I state that the Annexures hereto are true
copies of the documents referred to and relied upon by me.
(8)
I say that I am aware that for any false
statement or concealment, I shall be liable for action taken against me under
the law for the time being in force.
Place:
Date:
DEPONENT
VERIFICATION
I, ………………………. do hereby
declare that the statements made above are true to my knowledge.
Verified at [place] on this
[date]
DEPONENT.]
[Vide the Jammu and Kashmir
Reorganisation (Adaptation of Central Laws) Order, 2020, notification No. S.O.
1123(E) dated (18-3-2020) and vide Union Territory of Ladakh Reorganisation (Adaptation
of Central Laws) Order, 2020, Notification No. S.O. 3774(E), dated
(23-10-2020)].
THE
SECOND SCHEDULE.—[Arbitration.] Rep. by the Arbitration Act,
1940 (10 of 1940), s. 49 (1) and the Third Sch.
THE
THIRD SCHEDULE.—[Execution of Decrees by Collectors.] Rep by
the Code of Civil Procedure (Amendment) Act, 1956 (66 of 1956), s. 15.
THE
FOURTH SCHEDULE.—[Enactments amended.] Rep. by the Repealing
and Amending Act, 1952 (48 of 1952), s. 2 and the First Sch.
THE
FIFTH SCHEDULE.—[Enactments repealed.] Rep. by the Second
Repealing and Amending Act, 1914 (17 of 1914). s. 3 and the Second Sch.
ANNEXURE
THE
CODE OF CIVIL PROCEDURE (AMENDMENT) ACT, 1976
(104
OF 1976)
* *
* * *
CHAPTER
V
REPEAL
AND SAVINGS
97.
Repeal and savings.—
(1)
Any amendment made, or any provision inserted
in the principal Act by State Legislature or a High Court before the
commencement of this Act shall except in so far as such amendment or provision
is consistent with the provisions of the principal Act as amended by this Act,
stand repealed.
(2)
Notwithstanding that the provisions of this
Act have come into force or the repeal under sub-section (1) has taken effect,
and without prejudice to the generality of the provisions of section 6 of the
General Clauses Act, 1897 (10 of 1897),—
(a)
the amendment made to clause (2) of section 2
of the principal Act by section 3 of this Act shall not affect any appeal
against the determination of any such question as is referred to in section 47
and every such appeal shall be dealt with as if the said section 3 had not come
into force;
(b)
the provisions of section 20 of the principal
Act, as amended by section 7 of this Act, shall not apply to or affect any suit
pending immediately before the commencement of the said section; and every such
suit shall be tried as if the said section 7 had not come into force;
(c)
the provisions of section 21 of the principal
Act, as amended by section 8 of this Act, shall not apply to or affect any suit
pending immediately before the commencement of the said section 8; and every such
suit shall be tried as if the said section 8 had not come into force;
(d)
the provisions of section 25 of the principal
Act, as substituted by section 11 of this Act, shall not apply to or affect any
suit, appeal or other proceeding wherein any report has been made under the
provisions of section 25 before the commencement of the said section 11; and
every such suit, appeal or other proceeding shall be dealt with as if the said
section11 had not come into force;
(e)
the provisions of section 34 of the principal
Act, as amended by section 13 of this Act, shall not affect the rate at which
interest may be allowed on a decree in any suit instituted before the
commencement of the said section 13 and interest on a decree passed in such
suit shall be ordered in accordance with the provisions of section 34 as they
stood before the commencement of the said section 13 as if the said section 13
had not come into force;
(f)
the provisions of section 35A of the
principal Act, as amended by section 14 of this Act, shall not apply to or
affect any proceedings for revision, pending immediately before the
commencement of the said section 14 and every such proceedings shall be dealt
with and disposed of as if the said section 14 had not come into force;
(g)
the provisions of section 60 of the principal
Act, as amended by section 23 of this Act, shall not apply to any attachment
made before the commencement of the said section 23;
(h)
the amendment of section 80 of the principal
Act by section 27 of this Act shall not apply to or affect any suit instituted
before the commencement of the said section 27; and every such suit shall be
dealt with as if section 80 had not been amended by the said section 27;
(i)
the provisions of section 82 of the principal
Act, as amended by section 28 of this Act, shall not apply to or affect any
decree passed against the Union of India or a State or, as the case may be, a
public officer, before the commencement of the said section 28 or to the
execution of any such decree; and every such decree or execution shall be dealt
with as if the said section 28 had not come into force;
(j)
the provisions of section 91 of the principal
Act, as amended by section 30 of this Act, shall not apply to or affect any
suit, appeal or proceeding instituted or filed before the commencement of the
said section 30; and every such suit, appeal or proceeding shall be disposed of
as if the said section 30 had not come into force;
(k)
the provisions of section 92 of the principal
Act, as amended by section 31 of this Act, shall not apply to or affect any
suit, appeal or proceeding instituted or filed before the commencement of the
said section 31; and every such suit, appeal or proceeding shall be disposed of
as if the said section 31 had not come into force;
(l)
the provisions of section 96 of the principal
Act, as amended by section 33 of this Act, shall not apply to or affect any
appeal against the decree passed in any suit instituted before the commencement
of the said section 33; and every such appeal shall be dealt with as if the
said section 33 had not come into force;
(m)
the provisions of section 100 of the
principal Act, as substituted by section 37 of this Act, shall not apply to or
affect any appeal from an appellate decree or order which had been admitted;
before the commencement of the said section 37, after hearing under rule 11 of
Order XLI; and every such admitted appeal shall be dealt with as if the said
section 37 had not come into force;
(n)
section 100A, as inserted in the principal
Act, by section 38 of this Act, shall not apply to or affect any appeal against
the decision of a single Judge of a High Court under any Letters Patent which
had been admitted before the commencement of the said section 38; and every
such admitted appeal shall be disposed of as if the said section 38 had not come
into force;
(o)
the amendment of section 115 of the principal
Act, by section 43 of this Act, shall not apply to or affect any proceeding for
revision which had been admitted, after preliminary hearing, before the
commencement of the said section 43; and every such proceeding for revision
shall be disposed of as if the said section 43 had not come into force;
(p)
the provisions of section 141 of the
principal Act, as amended by section 47 of this Act, shall not apply to or
affect any proceeding which is pending immediately before the commencement of
the said section 47; and every such proceeding shall be dealt with as if the
said section 47 had not come into force;
(q)
the provisions of rules 31, 32, 48A, 57 to
59, 90 and 97 to 103 of Order XXI of the First Schedule as amended or, as the
case may be, substituted or inserted by section 72 of this Act shall not apply
to or affect—
(i)
any attachment subsisting immediately before
the commencement of the said section 72,
or
(ii)
any suit instituted before such commencement under
rule 63 aforesaid to establish right to attached property or under rule 103
aforesaid to establish possession, or
(iii)
any proceeding to set aside the sale of any
immovable property, and every such attachment, suit or proceeding shall be
continued as if the said section 72 had not come into force;
(r)
the provisions of rule 4 of Order XXII of the
First Schedule, as substituted by section 73 of this Act shall not apply to any
order of abatement made before the commencement of the said section 73;
(s)
the amendment, as well as substitution made
in Order XXIII of the First Schedule by section 74 of this Act shall not apply
to any suit or proceeding pending before the commencement of the said section
74;
(t)
the provisions of rules 5A and 5B of Order
XXVII, as inserted by section 76 of this Act, shall not apply to any suit,
pending immediately before the commencement of the said section 76; against the
Government or any public officer; and every such suit shall be dealt with as if
the said section 76 had not come into force;
(u)
the provisions of rules 1A, 2A and 3 of Order
XXVIIA, as inserted or substituted, as the case may be, by section 77 of this
Act shall not apply to or affect any suit which is pending before the
commencement of the said section 77;
(v)
rules 2A, 3A and 15 of Order XXXII of the
First Schedule, as amended, or as the case may be, substituted by section 79 of
this Act, shall not apply to a suit pending at the commencement of the said
section 79 and every such suit shall be dealt with and disposed of as if the
said section 79 had not come into force;
(w)
the provisions of Order XXXIII of the First
Schedule, as amended by section 81 of this Act, shall not apply to or affect
any suit or proceeding pending before the commencement of the said section 81
for permission to sue as a pauper; and every such suit or proceeding shall be
dealt with and disposed of as if the said section 81 had not come into force;
(x)
the provisions of Order XXXVII of the First
Schedule, as amended by section 84 of this Act, shall not apply to any suit
pending before the commencement of the said section 84, and every such suit
shall be dealt with and disposed of as if the said section 84 had not come into
force;
(y)
the provisions of Order XXXIX of the First
Schedule, as amended by section 86 of this Act, shall not apply to or affect
any injunction subsisting immediately before the commencement of the said
section 86; and every such injunction and proceeding for dis-obedience of such
injunction shall be dealt with as if the said section 81 had not come into
force;
(z)
the provisions of Order XLI of the First
Schedule, as amended by section 87 of this Act, shall not apply to or affect
any appeal pending immediately before the commencement of the said section 87;
and every such appeal shall be disposed of as if the said section 87 had not
come into force:
(za)
the provisions of Order XLII of the First
Schedule, as amended by section 88 of this Act, shall not apply to or affect
any appeal from an appellate decree or order which had been admitted, before
the commencement of the said section 88 after hearing under rule 11 of Order
XLI; and every such admitted appeal shall be dealt with as if the said section
88 had not come into force;
(zb)
the provisions of Order XLIII of the
First Schedule, as amended by section 89 of this Act, shall not apply to any
appeal against any order pending immediately before the commencement of the
said section 89; and every such appeal shall be disposed of as if the said
section 89 had not come into force;
(3)
Save as otherwise provided in sub-section
(2), the provisions of the principal Act, as amended by this Act, shall apply
to every suit, proceedings, appeal or application, pending at the commencement
of this Act or instituted or filed after such commencement, notwithstanding the
fact that the right, or cause of action, in pursuance of which such suit,
proceeding, appeal or application is instituted or filed, had been acquired or
had accrued before such commencement.