Civil Procedure Code 1908 – 2nd Page

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Civil Procedure Code 1908 – 1st Page
Civil Procedure Code 1908 – 2nd Page
Civil Procedure Code 1908 – 3rd Page

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 to 63-Omitted by Act No. 104 of 1976.]

HIGH COURT AMENDMENTS

Calcutta.-In Order XXI, after rule 63, insert the following rule, namely:-

“63A. When an attachment of movable property ceases, the Court may order the restoration of the attachment property to the person in whose possession it was before the attachment.” (w.e.f. 3-11-1933)

Gauhati.-Same as in Calcutta,

Patna.-In Order XXI, after rule 63, insert the following heading and rules, namely:-

“Garnishee Orders

63A. Where a debt {other than a debt secured by a mortgagor a debt recoverable only in Revenue Court or a debt the amount of which exceeds the pecuniary jurisdiction of the Court) has been attached under rule 46 and the debtor prohibited under clause (i) of sub-rule (1) of rule 46 (hereinafter called the garnishee) does not pay the amount of the debt into Court in accordance with rule 46, sub-rule (3), the Court, on the application of the decree-holder, may order a notice to issue calling upon the garnishee to appear before the Court and show cause why he should not pay into Court the debt due from him to the judgment-debtor. A copy of such notice shall, unless otherwise ordered by the Court, be served on the judgment-debtor.

63B. (1) If the garnishee does not pay into Court the amount of the debt due from him to judgment-debtor, and if he does not appear in answer to the notice issued under rule 63A, or does not dispute his liability to pay such debt to the judgment-debtor, then the Court may order the garnishee to comply with the terms of such notice, and on such order execution may issue against the garnishee as though such order were a decree against him.

(2) If the garnishee appears in answer to the notice issued under rule 63A, and disputes his liability to pay the debt attached, the Court, instead of making an order as aforesaid, may order that any issue or question necessary for determining his liability be tried as though it were an issue in a suit and **** upon the determination of such issue shall pass such order upon the notice as shall be just.

63C. Whenever in any proceedings under the foregoing rules it is alleged by the garnishee that the debt attached belongs to some third person, or that any third person has a lien or charge upon or interest in it, the Court may order such third person to appear and state the nature and particulars of his claim, if any, upon such debt, and prove the same, if necessary.

63D. After hearing such third person and any other person who may subsequently to be ordered to appear, or in the case of such third or other person not appearing as ordered, the Court may pass such order as is provided in the foregoing rules, or make such other order as the Court shall think fit, upon such terms in all cases with respect to the lien charge or interest, if any, of such third or other person as shall seem just and reasonable.

63E. Payment made by, or levied by execution upon the garnishee in accordance with any order made under these rules shall be a valid discharge to him as against the judgment-debtor, and any other person ordered to appear under these rules, for the amount paid or levied although such order or the judgment may be set aside or reversed.

63F. The costs of any application for the attachment of a debt under the foregoing rules and of any proceedings arising from or incidental to such application shall be in the discretion of the Court. Costs awarded to the decree-holder shall, unless otherwise directed, be retained out of the money recovered by him under the garnishee order and in priority to the amount of his decree.

63G. Out of the amount recovered under the garnishee order the Court shall deduct a sum equal to the court-fee payable under the Indian Court-Fees Act on a plaint in a suit for recovery of the money and credit the same to the Government.

63H. (1) Where the liability of any garnishee has been tried and determined under these rules the order shall have the same force and be subject to the same condition as to appeals or otherwise as if were a decree.

(2) Orders not covered by clause (1) shall be appealable as orders made in execution.”

Sale genrally

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.

HIGH COURT AMENDMENTS

Madras–In Order XXI, in rule 64, after the words “executing a decree may”, insert the words “after notice to the decree-holder and judgment-debtor”, (w.e.f. 10-4-1963)

Orissa.-Same as in Patna.

Patna.-In Order XXI, in rule 64,-

(a) for the words “attached by it”, substitute the words “in respect of which it has made an order of attachment”.

(b) between the words “and” and “liable”, insert the words “which is” (w.e.f. 7-1-1936).

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.

HIGH COURT AMENDMENTS

Andhra Pradesh.-Same as in Madhya Pradesh.

Kerala.-Same as in Madhya Pradesh.

Madhya Pradesh.-In Order XXI, in rule 65, at the end, insert the following words:-

“Such officer or person shall be competent to declare the highest bidder as purchaser at the sale, provided that, where the sale is made in, or within the precincts of the Court-house, no such declaration shall be made without the leave of the Court.” (w.e.f. 16-9-1960)

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 draw 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 1[or, where a part of the property would be sufficient to satisfy the decree, such part];

(b) the revenue assessed upon 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:

1[Provided that where notice of the date for settling the terms of the proclamatioin has been given to the judgement-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 accompaniec 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 verification, 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 ma> examine him in respect to any such matters and require him to produce any documeni in his possession or power relating thereto.

HIGH COURT AMENDMENTS

Andhra Pradesh and Kerala.-In Order XXI, in rule 66,-

(i) Same as in of Madras.

(ii) reletter clause (e) as clause (f) and insert to following clause, namely;-

“(e) the value of the property as stated (i) by the decree-holder and {ii} by the judgment-debtor;” (w.e.f. 13-10-1936)

(iii) in sub-rule (1), for the words “made”, substitute “drawn up.” (w.e.f. 12-11-1952)

Calcutta and Gauhati.-In Order XXI, in rule 66, in sub-rule (2), after clause (e), insert the following proviso, namely:-

“Provided that it shall not be necessary for the Court itself to give its own estimate of the value of the property but the proclamation shall include the estimate if any given by either or both the parties.”

Delhi and Himachal Pradesh.-In Order XXI, in rule 66, after sub-rule (2),-

(i) insert the following sub-rule, namely:-

“(3) Where the property to be sold is movable property which has been made over to a custodian under sub-clause (a) or (c) of clause (1) of rule 43 of this Order, the Court shall also issue a process by way of notice to the custodian directing him to produce the property at the place of sale, at a time to be specified therein with a warning that if he fails to comply with the directions, he shall be liable to action under section 145 of the Code of Civil Procedure.”

(ii) renumber sub-rules (3) and (4) as sub-rules (4) and (5) respectively.

Karnataka.-

In Order XXI, in rule 66, in sub-rule (2),-

(i) re-number clause (e) as clause (f) and insert the following clause, namely:-

“(e) The value of the property as stated by the decree-holder and the value of the property as stated by the judgment-debtor;”

(ii) in clause (d), omit the word “and”, (w.e.f. 30-3-1967)

Madhya Pradesh.-In Order XXI, in rule 66, in sub-rule (2), at the end, insert the words “including the decere-holder’s estimate of the approximate market price.” (w.e.f. 16-9-1960)

Madras.-In Order XXI, in rule 66,-

(i) in sub-rule (1), for the word “made”, substitute the words “drawn up”;

(ii) for sub-rule (2), substitute in the following sub-rule, namely:-

“(2) The term of such proclamation shall be settled in Court after notice to the decree-holder and judgment-debtor except in cases where notices have already been served under Order XXI, rule 64 and such proclamation shall state the time and place of sale and specify as accurately possible-

(a) the property to be sold,

(b) the revenue assessed upon the estate or part of the estate where the property to be sold is an interest in an estate or 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,

(e) the value of the property as stated (i) by the D.H. and (ii) by the J.D.,

(f) every other thing which the Court considers material for a purchaser to know in order to judge the nature and value of the property.” (w.e.f. 5-9-1968)

Patna.-In Order XXI, in rule 66, in sub-rule (2),-

(i) omit the words “shall be drawn up after notice to the decree-holder and the judgment-debtor and”;

(ii) after clause (e), insert the following proviso, namely:-

“Provided that no estimate of the value of the property other then those, if any, made by the decree-holder and judgment-debtor respectively together with a statement that the Court does vouch for the accuracy of either shall be inserted in sate proclamation.”

Punjab, Haryana And Chandigarh.-In Order XXI, in rule 66,-

(i) in sub-rule (2), after clause (e), insert the following proviso, namely:-

“Provided that it shall not be necessary for the Court itself to give its own estimate -of the value of the property; but proclamation shall include the estimate, if any, given by either or both of the parties.”

(ii) after sub-rule (2), insert the following sub-rule, namely:-

“(3) Where the property to be sold is movable property which has been made over to a custodian under sub-clauses (a) or (c) of clause (1) of rule 43 of this Order, the Court shall also issue a process by way of notice to the custodian, directing him to produce the property at the place of sale, at a time to be specified therein with a warning that if he fails to comply with the directions, he shall be liable to action under section 145 of the C.P. Code.”

(iii) renumber sub-rules (3) and (4) as sub-rules (4) and (5) respectively.

1. Ins. by Act No. 104 of 1976, sec. 72 (w.e.f. 1-2-1977).

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.

HIGH COURT AMENDMENTS

Andhra Pradesh.-Same as in Madras.

Karnataka-In Order XXI, in rule 67, after sub-rule (3), insert the following sub-rule, namely:-

“(4) Unless the Court so directs it shall not be necessary to send a copy of the proclamation to the judgment-debtor.”

Kerala.-Same as in Madras, (w.e.f. 9-6-1959)

Madras.-In Order XXI, in rule 67,-

(a) (i) for the Marginal heading, substitute the following marginal heading, namely:-

“Mode of publishing the proclamation of sale”;

(iii) in sub-rule (3), for the words “to make a separate proclamation for each lot”, substitute the words “to publish the proclamation of same separately for each lot”.

(b) after sub-rule (3), insert the following sub-rule, namely:-

“(4) Unless the Court directs it shall not be necessary to send a copy of the proclamation to the judgment-debtor.”

Orissa.-Same as in Patna.

Patna.-In Order XXI, in rule 67, in sub-rule (1), at the end, omit the full stop and add the following words, namely:-

“and may, if the Court so directs, on the application of the decree-holder, be proclaimed and published simultaneously with the order of attachment.”

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 1[fifteen days] in the case of immovable property, and of at least 2[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.

1. Subs. by Act. No. 104 of 1976, Sec 72 for “thirty days” (w.e.f. 1-2-1977).

2. Subs. by Act. No. 104 of 1976, Sec. 72 for “fifteen days” (w.e.f. 1-2-1977).

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) or a longer period than 1[thirty] days a fresh proclamation under rule 67 shall be made, unless the judgment-debtor consents to waive it.

(3) Every sale 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.

HIGH COURT AMENDMENTS

Allahabad.-In Order XXI, in rule 69, for sub-rule (2), substitute the following sub-rule, namely:-

“(2) Where a sale has been once adjourned under sub-rule (1), a fresh proclamation under rule 67 shall be made, under the judgment-debtor consents to wave it:

Provided that where the adjournment is for a period not longer than [thirty] days from the date originally fixed for sale, no fresh proclamation shall be necessary:

Provided also that the Court may dispense with the consent of any judgment-debtor who has failed to attend in answer to a notice issued under rule 66.”

Andhra Pradesh.-In Order XXI, in rule 67, in sub-rule (2), for the words “a fresh proclamation under rule 67 shall be made”, substitute the words “there shall be a fresh publication of the proclamation in the manner prescribed by rule 67”.

Bombay.-In Order XXI, in rule 67, in sub-rule (1), after the words “adjourn the sale”, insert the words “to specified day and hour”.

Karnataka.-Same as in Andhra Pradesh only adding the words “of sale” after “proclamation”, (w.e.f. 30-3-1967)

Kerala.-In Order XXI, in rule 67, in sub-rule (2), insert the following proviso, namely:-

“Provided that no such fresh proclamation shall be necessary in cases where the sale has been adjourned on account of the absence of Presiding Judge or on account of the day fixed for sale being declared a holiday.” (w.e.f. 10-3-1964)

Madras.-In Order XXI, in rule 67, for sub-rule (2), substitute the following sub-rule, namely:-

“(2) Where a sale is adjourned under sub-rule (1) for a longer period than thirty days, there shall be fresh publication of the proclamation in the manner prescribed by rule 67, unless the judgment-debtor consents to waive it, or the Court otherwise orders.” (w.e.f. 5-9-1968)

Orissa.-Same as in Patna.

Patna.-In Order XXI, in rule 67, in sub-rule (2), insert the following proviso, namely:-

“Provided that the Court may dispense with the consent of any judgment-debtor who has not appeared in the proceedings.”

1. Subs, by Act. No. 104 of 1976, Sec. 72 for “seven” (w.e.f. 1-2-1977).

70. [Saving of certain sales.]

Rep. by the Code of Civil Procedure (Amendment) Act, 1956 (66 of 1956), s. 14 (w.e.f. 1-1-1957).

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.

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 small 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.

HIGH COURT AMENDMENTS

Allahabad.-In Order XXI, in rule 72,-

(a) omit sub-rules (1) and (3);

(b) re-number sub-rule (2) as sub-rule (1);

(c) in sub-rule (1) as so renumbered, for the words “with such permission”, substitute the words “the property sold”.

[Vide Notification No. 4084/35(a)-3(7), dated 24th July, 1926.]

Patna.-In Order XXI, in rule 72,- (a) for sub-rule (1), substitute the following sub-rule, namely:-

“(1) No holder of a decree in execution of which property is sold shall be ‘, precluded from bidding for or purchasing the property unless on express order to that effect is made by the Court.”

(b) in sub-rule (2), for the words “with such permission”, substitute the words “the property”.

(c) for sub-rule (3), substitute the following sub-rule, namely:-

“(3) Where notwithstanding an order made under sub-rule (1) a decree-holder purchases the property by himself or through another person the Court shall, 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 cost of such application and order and any deficiency of price which may happen on the re-sale and all expenses attending it shall be in the discretion of the Court.”

1[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.]

1. Ins. by Act. No. 104 of 1976, sec. 72 (w.e.f. 1-2-1977).

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

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 treading 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 salej the next market-day,

the sale shall be postponed accordingly and shall be then completed, whatever price may be offered for the produce.

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.

HIGH COURT AMENDMENTS

Andhra Pradesh.-Same as in Madras.

Bombay.-In Order XXI, in rule 75, in sub-rule (2), after the words “being stored”, insert the words, “or, where it appears-‘to the Court that the crop [shall] be sold to greater advantage in an unripe state”.

Calcutta.-In Order XXI, in rule 75, in sub-rule (2),-

(a) after the words “Where the crop from its nature does not admit of being stored”, insert the words “or can be sold to greater advantage in an unripe state (e.g. as green wheat)”,

(b) between the words “tending” and “cutting” for the word “and” substitute the word “or”.

[Vide Notification No. 3615-G, dated 3rd February, 1933.]

Delhi.-Same as in Punjab.

Gauhati.-Same as in Calcutta.

Himachal Pradesh.-Same as in Punjab.

Karnataka.-In Order XXI, for rule 75, substitute the following rule, namely:-

“75. (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, unless the Court decides to proceed under the provisions of sub-rule (2) of this rule, the day of 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 stored.

(2) Where the crop from its nature does not admit of being stored or can be sold to greater advantage in an unripe state, it may be sold before it is cut and gathered or in such unripe state, and the purchaser shall be entitled to enter on the land and do all that is necessary for the purpose of tending and cutting or gathering the said crop.” (30-3-1967)

Kerala.-Same as in Madras

[Vide Notification No. 81-3312/58, dated 7th April, 1959.]

Madhya Pradesh.-In Order XXI, in rule 75, in sub-rule (2), after the words “being stored”, insert the words “or, where it appears to the Court that the crop can be sold to greater advantage in an unripe state”, (w.e.f. 16-9-1960) Madras.-In Order XXI, in rule 75,-

(a) in sub-rule (1), after the words “yet been stored”, insert the words “unless the Court decides to proceed under the provisions of sub-rule (2) hereunder”,

(b) in sub-rule (2) after the words “being stored”, insert the words “or can be sold to greater advantage in an unripe state” and after the words “and gathered”, insert the words “or in such unripe state”, (w.e.f. 9-6-1959}

Patna.-In Order XXI, for rule 75, substitute the following rule, namely:-

“75. Where the property to be sold is a growing crop which can be sold to greater advantage in an unripe or unreaped state, it may be sold unreaped, and the purchaser shall be entitled to enter on the land to do all that is necessary for the purpose of tending and reaping it. In all other cases the day of sale shall be so fixed as to admit of the crop ripening and reaped before the sale.”

[Vide Notification No. 1-R, dated 7th January, 1936.]

Punjab.-In Order XXI, in rule 75, in sub-rule (2), after the word “stored”, insert the words “or can be sold to greater advantage in an unripe state”.

[Vide Notification No. 2212-G, dated 12th May, 1909 and Notification No. 123-R/XI-Y-14, dated 28th April, 1938.]

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, authorize the sale of such instrument or share through a broker.

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 pay ment 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.

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.

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, of 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.

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 AS.

(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.

ORDER XXI (81-106). EXECUTION OF DECREES AND ORDERS

ORDER XXI. EXECUTION OF DECREES AND ORDERS

Payment under decree

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

82. What Courts may order sales.

Sales of immovable property in execution of decrees may be ordered by any Court other than a Court of Small Causes.

HIGH COURT AMENDMENT

Kerala.-In Order XXI, in rule 82, for the words “of Small Causes”, substitute the words “exercising small cause jurisdiction”. (w.e.f. 9-6-1959).

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 sold in execution of a decree for sale in enforcement of a mortgage of, or charge on, such property.

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.

HIGH COURT AMENDMENT

Allahabad.-In Order XXI, in rule 84, in sub-rule (2), at the end, insert the following words, namely:-

“The court shall not dispense with the requirements of this rule in a case in which there is an application for rateable distribution of assets.”

[Vide Notification No. 16699-H, dated 17th January, 1953.]

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.

HIGH COURT AMENDMENTS

Andhra Pradesh.-Same as in Madras.

Bombay.-In Order XXI, in rule 85,-

(i) after the words “purchase-money payable”, insert the words “together with the amount required for general stamp paper for certificate under rule 94”.

(ii) for the proviso, substitute the following provisos and Explanation, namely:-

“Provided that, in Respect of the purchase money, the purchaser shall have the advantage of any set-joff to which he may be entitled under rule 72:

Provided further that, if as a result of some bona fide mistake or miscalculation the amount deposited fails short of the full amount of the purchase-money, the Court may in its discretion allow the shortfall to be made up after fifteen days of the sale, and if the full amount of the purchase-money is deposited within such time as the Court may allow, the Court may condone the delay, if it considers it just and proper to do so.

Explanation.-When an amount is tendered in Court on any day after 1 p.m. but not accepted by the Court and is paid into Court on the next working day between 11 a.m. and 1 p.m., the payment shall be deemed to have been made on the day on which the tender is made.” (w.e.f. 1-10-1983)

Gujarat.-In Order XXI, after rule 85, insert the following rule, namely:-

“85A. Set-off where execution has been transferred to Collector.-In cases where execution has been transferred to the Collector, for the purposes of rules 84 and 85, the purchaser shall be deemed to be entitled to a set-off under rule 72 if he produces a certificate to that effect from the Court executing the decree.” (w.e.f. 17-8-1961)

Kerala.-In Order XXI, in rule 85,- ”

(i) after the words “purchase-money payable”, insert the words “together with the amount required for the general stamp paper for the certificate under rule 94”.

(ii) in the proviso, for the words “in calculating the amount to be so paid into Court”, substitute the words “in respect of the purchase-money”, (w.e.f. 1-1-1966)

Madhya Pradesh.-In Order XXI, in rule 85, insert the following Explanation, namely:-

“Explanation.-When an amount is tendered on any day after 1 p.m. but paid into Court on the next working day between 11 a.m. and 1 p.m., the payment shall be deemed to have been made on the day on which the tender is made.”

[Vide Notification No. 3409, dated 29th June, 1943.]

Madras.-In Order XXI, for rule 85, substitute the following rule, namely:-

“85. Time for payment in full of purchase-money and of stamp certificate of sale.-The full amount of purchase money payable and the general stamp for the certificate under rule 94 or the amount required for such stamp, shall be deposited into Court by the purchaser before the Court closes on the fifteenth day from the sale of the property:

Provided that in calculating the amount of purchase-money to be so deposited the purchaser shall have the advantage of any set-off to which he may be entitled under rule 72.”

[Vide P. Dis. No. 677, dated 25th November, 1944.]

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.

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.

HIGH COURT AMENDMENTS

Andhra Pradesh.-Same as in Madras.

Bombay.-In Order XXI, in rule 87, for the words “of the purchase-money”, substitute the words “of the amount mentioned in rule 85”.

[Vide Maharashtra Gazette, Ft. IV-C, p. 418, dated 15th September, 1983 (w.e.f. 1-10-1983).

Kerala.-Same as in Madras.

[Vide Notification No. Bl-3312/58, dated 7th April, 1959.]

Madras.-In Order XXI, in rule 87, for the words “payment of the purchase-money” substitute the words “the payment of the amounts mentioned in rule 85”.

[Vide GOMs No. 2922-Home, dated 28th October, 1936-HCP Dis No. 690 of 1936.]

88. Bid of co-sharer to have preference

Where the property sold is a share of undivided immovable property and two or more persons, or 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.

89. Application to set aside sale on deposit

(1) Where immovable property has been sold in execution of a degree, 1[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 deposition 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.

1. Subs, by Act No. 104 of 1976 for certain words (w.e.f. 1-2-1977).

HIGH COURT AMENDMENTS

Andhra Pradesh.-Same as in Madras.

Bombay.-In Order XXI, in rule 89, in sub-rule (1), insert the following proviso, namely:- “Provided that if the full amount required to be deposited in Court under this rule is not deposited at the time of making the application through some bona fide mistake or miscalculation and the short-fall is made up within one week from the date of the discovery of the mistake or calculation, the Court may condone the delay, if it considers it just and proper to do so.” (w.e.f. 1-11-1966)

Karnataka.-In Order XXI, in rule 89, in sub-rule (1),-

(i) in clause (b), for the words “such proclamation of sale, have been received by the decree-holder”, substitute the words “that proclamation of sale, have been paid or deposited towards satisfaction of the decree”. (ii) insert the proviso as in Madras.

Kerala.-In Order XXI, in rule 89, in sub-rule (1),-

(i) in clause (b), for the words “date of such proclamation”, substitute the words “date of the proclamation”;

(ii) insert the following provisos, namely:-

“Provided that, when several items of properties are sold separately, the sale of one or more of such items may be set aside on depositing in Court the amount of the purchase-money for the items the sale of which is sought to be set aside and a sum equal to five per cent, of that amount, and the balance, if any, of the amount specified in the proclamation of sale as that for the recovery of which the sale was ordered still remains unrealised:

Provided further that where the immovable property sold is liable to discharge a portion of the decree debt, the payment under clause (b) of this sub-rule need not exceed such amount as under the decree the owner of the property sold is liable to pay.” (w.e.f. 9-6-1959)

Madras.-In Order XXI, in rule 89, in sub-rule (1),-

”(i) in clause (b) for the words “date of such proclamation”, substitute the words “date of that proclamation”,

(ii) insert the following proviso, namely:-

“Provided that where the immovable property sold is liable to discharge a portion of the decree debt, the payment under clause (b) of this sub-rule need not exceed such amount as under the decree the owner of the property sold is liable to pay”

[Vide GOMs 2084 Home, dated 2nd September, 1936-HCP Dis No. 691, dated 13th October, 1936].

1[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, 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 conduction it.

(2) No sale shall be set aside on the ground of irregularity or fraud in publishir 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 an ground which the applicant could have taken on or before the date on which the proclamation of sale was drawn up.

Explanation.-There 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.]

1. Subs, by Act No. 104 of 1976, sec. 72 for rule 90 (w.e.f. 1-2-1977).

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 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.

HIGH COURT AMENDMENT

Gujarat-In Order XXI, after rule 91, insert the following rule, namely:-

“91A. Deposits how to be made., where execution is transferred to Collector.-Where the execution of a decree has been transferred to the Collector and the sale has been conducted by the Collector or by an officer subordinate to the Collector, an application under rule 89, 90 or 91, and in the case of an application under rule 89, the deposit required by that rule if made to the Collector or the officer to whom the decree is referred for execution in accordance with any rule framed by the State Government under section 70 of the Code, shall be deemed to have been made to or in the Court within the meaning of rules 89, 90 and 91.” (w.e.f. 17-8-1961)

92. Sale when to become absolute or be set aside.

(1) When 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:

1[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 2[sixty days] from the date of sale, 3[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.

4[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.

5[(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 directs, be revived at the stage at which the sale was ordered.]

HIGH COURT AMENDMENTS

Allahabad.-In Order XXI, in rule 92, in sub-rule (1), after the words “the Court shall make”, insert the words “subject to the provisions of rule 58 (2)”.

[Vide Notification No. 4084/35(a}-3(7), dated 24th July, 1926.]

Andhra Pradesh.-Same as in Madras. Bombay.-In Order XXI, in rule 92,-

(i) in sub-rule (1), insert the following proviso, namely:-

“Provided that before confirming the sale the Court shall satisfy itself that the amount paid under rule 85 for the purchase of general stamp paper for the certificate under rule 94 is sufficient for the purpose in accordance with the rate in force at the time of confirmation and may, notwithstanding anything contained in rule 86, give the purchaser such times as it thinks fit for making good any deficiency.” (w.e.f. 1-10-1983) (ii) in sub-rule (2), insert words as in Madras by only substituting the words “has become deficient” for the words “has been diminished”.

[Vide Notification No. Bl-3312-58, dated 7th April, 1959.]

Kerala.-In Order XXI, in rule 92, in sub-rule (2),–

(i) for the words “thirty days”, substitute the words “sixty days”, (w.e.f. 9-2-1988)

[Ed.-This amendment relates to sub-rule (2) prior to its amendment made by the Central Act 22 of 2002, sec. 14 (w.e.f. 1-7-2002).]

(ii) after the words “from sale”, insert the words “and in case where the amount deposited has become deficient owing to any cause not within the control of the depositor such deficiency has been made good within such time as may be fixed by the Court”.

Madhya Pradesh.-In Order XXI, in rule 92, in sub-rule (1), after the words “the Court shall make”, insert the words “subject to the provisions of rule 58 (2)”.

[Vide Notification No. 3409, dated 29th June, 1943,]

Madras.-In Order XXI, in rule 92, in sub-rule (2), after the words “within thirty days from the date of sale” insert the following words:-

“and in case where the amount deposited has been diminished owing to any cause not within the control of the depositor such deficiency has been made good within such time as may be fixed by the Court.”

[Ed.-This amendment relates to sub-rule (2) prior to its amendments made by the Central Act 104 of 1976, sec. 72 (w.e.f. 1-2-1977} and Central Act 22 of 2002, sec. 14 (w.e.f. 1-7-2002).]

Patna.-Same as in Allahabad.

1. Added by Act No. 104 of 1976, sec. 72 (w.e.f. 1-2-1977).

2. Substituted for ‘thirty days’ by Act No. 22 of 2002, section 14 (w.e.f. 1-7-2002).

3. Subs, by Act No. 104 of 1976, sec. 72 for “the Court shall make an order setting aside the sale” (w.e.f. 1-2-1977).

4. Inserted by Act No. 22 of 2002, section 14 (w.e.f. 1 -7-2002).

5 Ins by Act No. 104 of 1976, sec. 72 (w.e..f. 1-2-1977).

93. Return of purchase-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.

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 of is declared to be the purchaser. Such certificate shall bear date the day on which the sale became absolute.

HIGH COURT AMENDMENTS

Allahabad.-In Order XXI,-

(i) renumber rule 94 as sub-rule (1) thereof;

(ii) after sub-rule (1) as so renumbered, insert following sub-rule, namely:-

“(2) Where immovable property is transferred otherwise than by sale, a document of transfer shall be granted by the Court specifying the property, the name of the person to whom it is transferred and the terms on which the transfer is made. Such document shall bear the date the day on which the transfer was ordered.” (w.e.f. 13-2-1960)

Bombay.-In Order XXI, in rule 94, between the words “sold” and “and”, insert a comma and the words “the amount of the purchase-money”, (w.e.f. 1-10-1983)

Madhya Pradesh.-Same as in Bombay, (w.e.f. 16-9-1960)

Orissa.-Same as in Patna.

Patna.-In Order XXI, for rule 94, substitute the following rule, namely:-

“94. Certificate to purchaser.-Where a sale of immovable property has become absolute the auction-purchaser shall file the sale certificate stamp within fifteen days from the date of confirmation of the sale, and 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 purchaser. Such certificate shall bear the date the day on which the sale becomes absolute. If the necessary stamp for sale certificate is not filed within the prescribed period the sale may, if the Court thinks fit, be set aside.”

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 to 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.

HIGH COURT AMENDMENT

Madras.-In Order XXI,-

(i) renumber rule 95 as sub-rule (1) thereof;

(ii) after sub-rule (1) as to renumbered, insert the following sub-rule, namely:-

“(2) Where delivery of possession of a house is to be given and it is found to be locked’ orders of Court shall be taken for breaking open the lock and for delivery of possession of the same to the purchaser.

If it is found at the time of delivery, that there are movables, in the house to which the purchaser has no claim and the judgment-debtor is absent or, if present, does not immediately remove the same, the officer entrusted with the warrant for delivery shall make an inventory of the articles so found with their probable value in the presence of respectable persons on the spot, have the same attested by them and leave the movables in the custody of the purchaser after taking a bond from him for keeping the articles in custody pending orders of Court for disposal of the same.

The officer shall then make a report to the Court and forward therewith the attested inventory taken by him.

The Court shall thereupon issue a notice to the judgment-debtor requiring him to take delivery of the said movables within thirty days from the date of the notice, and in default will be sold in public auction at his risk and the proceeds applied for meeting all legitimate expenses of custody and sale and the balance, if any, will be refunded to the judgment-debtor:

Provided that, if movable articles referred to above are perishable, the officer shall sell them in public auction immediately and bring the proceeds into Court. The notice to the judgment-debtor shall in such case call upon him to receive the amount from Court within three months.” (w.e.f. 17-8-1966)

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.

HIGH COURT AMENDMENT

Allahabad.-In Order XXI, after rule 96, insert the following rule namely:-

“96A. (1) The Court executing a decree may of its own motion or on application and on such terms as may appear to it just and reasonable in the circumstances of the case as are acceptable to the transferee, order that any property of the judgment-debtor attached by it, be transferred otherwise by sale in favour of the decree-holder or any other person not a party to the decree, for the purpose of satisfying the decree or portion thereof.

(2) The provisions of rules 64 to 103 of this order shall apply mutatis mutandis to a transfer other than sale made under this rule except that the Court may in its discretion dispense with the necessity of such transfer being made after issuing a proclamation or of the transfer being conducted by an officer of the Court by public auction or after issuing a proclamation.” (w.e.f. 13-2-1960)

Resistance to delivery of possession to decree- holder or purchaser

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.

1[(2) Where ?ny application is made under sub-rule (1), the Court shall proceed to adjudicate upon ihe application in accordance with the provisions herein con-tained.]

1. Subs. by Act No. 104 of 1976, sec. 72 for sub-rule (2) (w.e.f. 1-2-1977).

1[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.

HIGH COURT AMENDMENT

Bombay.-In Order XXI, in-rule 98, for sub-rule (2), substitute the following sub-rule, namely:-

“(2) Where upon such determination, the Court is satisfied that the resistance or obstruction was occasioned without any just cause by the judgment-debtor on 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. The Court may also order the person or persons whom it holds responsible for such resistance or obstruction to pay jointly to severally in addition to costs, reasonable compensation to the decree-holder or the purchaser, as the case may be for the delay and expenses caused to him in obtaining possession. Any order made under this rule shall have the same force and be subject to the same conditions as to appeal or otherwise at if it were a decree.” [Vide Maharashtra Government Gazette, Pt. IV, ka, p. 418, dated 15th September, 1983 (w.e.f. 1-10-1983).]

1. Subs,. by Act No. 104 of 1976, sec. 72 for rules 98 to 103 (w.e.f. 1-2-1977).

1[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 possession of such property or, where such property has been sol 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 adjudical upon the application in accordance with the provisions herein contained.]

1. Subs. by Act 104 of 1976, sec. 72 for rules 98 to 103 (w.e.f. 1-2-1977)

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 pi 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.

HIGH COURT AMENDMENT

Bombay.-In Order XXI, in rule 100, insert the following proviso, namely:-

“Where it is determined that the application is made by person to whom the judgment-debtor has transferred the property after the institution of the suit in which the decree was passed, the Court shall dismiss the application under sub-rule (a) above.” (w.e.f. 1-10-1983)

101. Questions 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.

HIGH COURT AMENDMENT

Bombay.-In Order XXI, in rule 101, insert the following proviso, namely:-

“Provided that when the Court is not competent to decide such question due to want of pecuniary jurisdiction 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.” (w.e.f. 1-10-1983)

102. Rules not applicable to transferee pendent life

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 judgment-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.

HIGH COURT AMENDMENT

Bombay.-In Order XXI, omit rule 102.

103. Orders to be treated as decrees

Where any application has been adjudicated upon under rule 98 or rule 100 the other 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.]

1[104. Order 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 be 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.

1. Ins. by Act No. 104 of 1976, sec. 72 (w.e.f. 1-2-1977).

1[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 pane 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.]

1. Ins. by Act No. 104 of 1976, sec. 72 (w.e.f. 1-2-1977).

1[106. Setting aside order 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 exparte under sub-rule (3) 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 when 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.

(2) No order shall be made on an application under sub-rule (1) unless notice of the application has been served on the other party.

(3) 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 pane order, the notice was not duly served, within thirty days from the date when applicant had knowledge of the order.]

1. Ins. by Act No. 104 of 1976, sec. 72 (w.e.f. 1-2-1977).

HIGH COURT AMENDMENTS

Allahabad.-In Order XXI, after rule 106, insert the following rules, namely:-

“106A. When the certificate prescribed by section 41 is received by the Court which sent the decree for execution, it shall cause the necessary details as to the result of execution to be entered in its register of civil suits before the papers are transmitted to the record room.

106B. Every attachment of movable property under rule 43, of the Negotiable Instruments under rule 51 and of immovable property under rule 54, shall be made through a Civil Court Amin, or bailiff, unless special reasons render it necessary that any other agency should be employed; in which case those reasons shall be stated in the handwriting of the presiding Judge himself in the order for attachment.

106C. When the property which it is sought to bring to sale is immovable property within the definition of the same contained in law for the time being in force relating to the registration of documents, the decree-holder shall file with his application for an order for sale a certificate from the Sub-Registrar within whose sub-district such property is situated, showing that the Sub-Registrar has searched his books Nos. I and II and their indices for twelve years preceding the mortgage or attachment as the case may be and stating the encumbrances, if any, which he has found on the property.

107. When an application is made for the sale of land or of any interest in land, the Court shall, before ordering sale thereof, call upon the parties to state whether such land is or is not ancestral land within the Notification No. 1887/1-238-10, dated 7th October, 1911, of Local Government, and shall fix a date for determining the said question.

On the day so fixed, or on any date to which the enquiry may have been adjourned, the Court may take such evidence, by affidavit or otherwise, as it may deem necessary, and may also call for a report from the Collector of the district as to whether such land or any portion thereof is ancestral land.

After considering the evidence and the report, if any, the Court shall determine whether such land, or any, and what part of it, is ancestral land.

The result of the enquiry shall be noted in an order made for the purpose by the presiding Judge in his own handwriting.

108. When the property which it is sought to bring to sale is revenue-paying or revenue-free land or any interest in such land, and the decree is not sent to the Collector for execution under section 68, the Court, before ordering sale, shall also call upon the Collector in whose district such property is situate to report whether the property is subject to any (and, if so, to what) outstanding claims on the part of Government.

109. The certificate of the Sub-Registrar and the report of the Collector shall be open to the inspection of the parties of their pleaders, free of charge, between the time of the receipt by the Court and the declaration of the result of the enquiry. No fees are payable in respect of the report by Collector.

110. The result of the enquiry under rule 66 shall be noted in an order made for the purpose by the presiding Judge in his own handwriting. The Court may, in its discretion, adjourn the enquiry, provided that the reasons for the adjournment are stated in writing, and that no more adjournments are made than are necessary for the purposes of the enquiry.

111. If after proclamation of the intended sale has been made any matter is brought to the notice ef the Court which it considers material for purchasers to know, the Court shall cause the same to be notified to intending purchasers when the property is put up for sale.

112. The costs of the proceedings under rules 66,106 and 108 shall be paid in the first instance by the decree-holder; but they shall be charged as part of the costs of the execution, unless the Court, for reasons to be specified in writing, shall consider that they shall either wholly or in part be omitted therefrom.

113. Whenever any Civil Court has sold, in execution of a decree or other order, any house or other building situated within the limits of a military cantonment or station, it shall, as soon as the sale has been confirmed, forward to the commanding officer of such cantonment or station for his information and for record in the Brigade or other proper office, a written notice that such sale has taken place; and such notice shall contain full particulars of the property sold and the name and address of the purchaser.

114. Whenever guns or other arms in respect of which licences have to be taken by purchasers under the Arms Act, 1959 are sold by public auction in execution of decree by order of a Civil Court, the Court directing the State shall give due notice to the Magistrate of the district of the names and addresses of the purchasers, and of the time and place of the intended delivery to the purchasers of such arms, so that proper steps may be taken by the police to enforce the requirements of the Arms Act.

115. When an application is made for the attachment of live-stock or other movable property, the decree-holder shall pay into Court in cash such sum as will cover the costs of the maintenance and custody of the property for fifteen days. If within three clear days before the expiry of any such period of fifteen days the amount of such costs for such further period as the Court may direct be not paid into Court, the Court, on receiving a report thereof from the proper officer, may issue an order for the withdrawal of the attachment and direct by whom the costs of the attachment are to be paid.

116. Live-stock which has been attached in execution of a decree shall ordinarily be left at the place where the attachment is made either in custody of the judgment-debtor on his furnishing security, or in that of some land-holder or other respectable person willing to undertake the responsibility of its custody and to produce it when required by the Court.

117. If the custody of live-stock cannot be provided for in the manner described in the last preceding rule, the animals attached shall be removed to the nearest pound established under the Cattle Trespass Act, 1871 (1 of 1871), and committed to the custody of the pound-keeper, who shall enter in a register-

(a) the number and description of the animals;

(b) the day and hour on and at which they were committed to his custody;

(c) the name of the attaching officer or his subordinate by whom they were committed to his custody; and shall give such attaching officer or subordinate a copy of the entry.

118. For every animal committed to the custody of the pound-keeper as aforesaid, a charge shall be levied as rent for the use of the pound for each fifteen or part of fifteen days during which such custody continues; according to the scale prescribed under section 12 of Act No. I of 1871.

And the sums so levied shall be credited to the Municipal Board or the Zilla Parishad or the Notified Area, as the case may be, under whose jurisdiction the pound is.

119. The pound-keeper shall take charge of, feed and water, animals attached and committed as aforesaid until they are withdrawn from his custody as hereinafter provided a,nd he shall be entitled to be paid for their maintenance at such rates as may be, from time to time, prescribed under proper authority. Such rates shall, for animals specified in the section mentioned in the last preceding rule, not exceed the rates for the time being fixed under section 5 of the same Act. In any case, for special reasons to be recorded in writing, the Court may require payment to be made for maintenance at higher rates than those prescribed.

120. The charges herein authorized for the maintenance of live-stock shall be paid to the pound-keeper by the attaching officer for the first fifteen days at the time the animals are committed to his custody, and thereafter for such further period as the Court may direct, at the commencement of such period. Payments for such maintenance so made in excess of the sum due for the number of days during which the animals may be in the custody of he pound-keeper shall be refunded by him to the attaching of officer.

121. Animals attached and committed as aforesaid shall not be released from custody by the pound-keeper except on the written order of the Court, or of the attaching officer, or of the officer appointed to conduct the sale; the person receiving the animals, on their being so released, shall sign a receipt for them in the register mentioned in rule 117.

122. For the safe custody of movable property other than live-stock while under attachment, the attaching officer shall, subject to approval by the Court, make such arrangements as may be most convenient and economical.

123. With the permission of the Court the attaching officer may place one or more person in special charge of such property.

124. The fee for the services of each such person shall be payable in the manner prescribed in rule 115. It shall not be less than twenty-five naya paise, and shall ordinarily not be more than thirty-seven naya paise per diem. The Court may, at its discretion, allow a higher fee; but if it does so, it shall state in writing its reasons for allowing an exceptional rate.

125. When the services of such person are no longer required the attaching officer shall give him a certificate on a counterfoil form of the number of days he has served and of the amount due to him; and on the presentation of such certificate to the Court which ordered the attachment, the amount shall be paid to him in the presence of the Presiding Judge:

Provided that, where the amount does not exceed Rs. 5, it may be paid to the Sahna by money order on requisition by the Amin, and the presentation of the certificate may be dispensed with.

126. When in consequence of an order of attachment being withdrawn or for some other reason, the person has not been employed or has remained in charge of the property for a shorter time than that for which payment has been made in respect of his services, the fee paid shall be refunded in whole or in part, as the case may be.

127. Fees paid into Court under the foregoing rules shall be entered in the Register of Petty Receipts and Repayments.

128. When any sum levied under rule 118 is remitted as the Treasury, it shall be accompanied by an order in triplicate (in the form given as Form No. 9 of the Municipal Account Code), of which one part will be forwarded by the Treasury Officials to the Zilla Parishad or Municipal Board, as the case may be. A note’that the same has been paid into the Treasury as rent for the use of the pound, will be recorded on the extract from the pass book.

129. The cost of preparing attached property for sale, or of conveying it to the place where it is to be k^pt or sold, shall be payable by the decree-holder to the attaching officer. In the event of the decree-holder failing to provide the necessary funds, the attaching officer shall report his default to the Court, and the Court may thereupon issue an order for the withdrawal of the attachment and direct by whom the costs of the attachment are to be paid.

130. Nothing in these rules shall be deemed to prevent the Court from issuing and serving on the judgment-debtor simultaneously the notice required by Order XXI, rules 22, 66 and 107.

131. The Court may, in the case of any debt due to the judgment-debtor (other than a debt secured by a mortgage or a charge or a negotiable instrument, or a debt recoverable only in a Revenue Court), or any movable property not in the possession of the judgment-debtor, which has been attached under rule 46 of this Order issue a notice to any person (hereinafter called the garnishee) liable to pay such debt or to deliver or account for such movable property, calling upon him to appear before the Court and show cause why he should not pay or deliver into Court the debt due from or the property deliverable by him to such judgment-debtor, or so much thereof as may be sufficient to satisfy the decree and the cost of execution. (As amended on 29-3-1949).

132. If the garnishee does not forthwith or within such time as the Court may allow, pay or deliver into Court the amount due from or the property deliverable by him to the judgment-debtor, or so much as may be sufficient to satisfy the decree and the cost of execution, and does not dispute his liability to pay such debt or deliver such movable property, of if he does not appear in answer to the notice then 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.

133. If the garnishee disputes Ms liability the Court, instead of making such order, may order that any issue of question necessary for determining his liability be tried as though if were an issue in a suit; and upon the determination of such issue shall pass such order as shall be just. (As amended on 29-3-1949).

134. Whenever in any proceedings under these rules it is alleged, or appears to the Court to be probable that the debt or property attached belongs to some third person, or that any third person has a Hen or charge upon, or an interest in it, the Court may order such third person to appear and state the nature of his claim, if any, upon such debt or property and prove the same, if necessary. (As amended on 29-3-1949).

135. After hearing such third person, and any other person who may subsequently be ordered to appear, or in the use of such third or other person not appearing when ordered, the Court may pass such order as is hereinbefore provided or make such other order as it shall think fit, upon such terms in all cases with respect to the lien, charge or interest, if any, of such third or other person as to such Court shall seem just and reasonable.

136. Payment or delivery made by the garnishee whether in execution of an order under these rules or otherwise shall be a valid discharge to him as against the judgment-debtor or any other person ordered to appear as aforesaid, for the amount paid, delivered or realised although such order of the judgment may be set aside or reversed.

137. Debts owing from a firm carrying on business within the jurisdiction of the Court may be attached under these rules, although one or more members of such firm may be resident out of the jurisdiction: * Provided that any person having the control or management of the partnership.*? business or any member of the firm within the jurisdiction is served with the garnishee order. An appearance by any member pursuant to an order shall be a sufficient appearance by the firm.

138. The costs of any application under these rules and of the proceedings arising therefrom or incidental thereto, or any order made thereon, shall be in the discretion of the Court.

139. (1) Where the liability of any garnishee has been tried and determined under these rules the order shall have the same force and be subject to the same conditions as to appeal or otherwise as if it were a decree.

(2) Orders not covered by clause (1) shall be appealable as orders made in execution.

Illustration.-An application for a garnishee order is dismissed either on the ground that the debt is secured by a charge or that there is no prima facie evidence of debt due. This order is appealable as an order in execution. 140. All the rules in this Court relating to service upon either plaintiffs or defendants at the address filed or subsequently altered under Order VII or Order VIII shall apply to all proceedings taken under Order XXI or section 47.

The following form shall be used under the provisions of rule 131 of Order XXI: Suit No…………………………of……..

………………………………………………………………………………………….Plaintiff,

Versus

……………………………………………………………………………….. ..Defendant

Whereas it is alleged that a debt of Rs………………. is due from you to the judgment-debtor.

Or that you are liable to deliver to the above named judgment-debtor the property set forth in the Schedule hereto attached; Take notice that you are hereby required on or before the…………….day of…..19…./20….. to pay into this Court the said sum of Rs……………or………… to deliver account to the Amin of this Court for the moveable property detailed in the attached schedule or otherwise to appear in person or by advocate, vakil or authorised agent in this Court at 10.30 in the forenoon of the day aforesaid and show cause to the contrary in default whereon an order for the payment of the said sum, or for the delivery of the said property may be passed against you. Dated this…………day of………. of……l9…….:../20……….

Munsiff/Sub-Judge……………

at…………………”

Andhra Pradesh.-In Order XXI, insert rule 106 which is same as in Madras with the addition of the following words at the end:-

“For this purpose, the Court may make an order 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 or reversal.”

[Vide Notification No. P Dis 229/56, dated 2nd April, 1959].

Madras.-In Order XXI, after rule 105, insert the following rule, namely:-

“106. Where and in so far as a decree or order is varied or reversed and the case does not fall within the scope of section 47 or section 144, the Court of first instance shall, on the application of any party affected by the decree or order, 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 on such part thereof as has been varied or reversed.” (w.e.f. 19-5-1954)

[Ed.-This amendment relates to rule 106 prior to its amendment made by the Central Act 104 of 1976, sec. 72 (w.e.f. 1-2-1977).]

Calcutta.-After Order XXI, insert the following Order, namely:-

“ORDER XXIA”

1. Every person applying to a Civil Court to attach movable property shall, in addition to the process-fee, deposit such reasonable sum as the Court may direct if it thinks necessary, for the cost of its removal to the Court-house, for its custody, and, if such property is live-stock, for its maintenance according to the rates prescribed in rule 2 of this Order. If the deposit when ordered, be not made, the attachment shall not issue. The Court may, from time to time, order the deposit of such further fees as may be necessary. In default of due payment the property shall be released from attachment.

[See Rule 150, Civil Rules and Orders, (1959) Calcutta and Order XXIA, rule 16.]

2. The following daily rates shall be chargeable for the custody and maintenance of live-stock under attachment:-

Goat and pig Annas 2 to annas 4.
Sheep Annas 2 to annas 3.
Cow and bullock Annas 6 to annas 10.
Calf Annas 3 to annas 6.
Buffalo Annas 8 to annas 12.
Horse Annas 8 to annas 12.
Ass Annas 3 to annas 5.
Poultry Annas 2 to annas 3 pies 6.

Explanation.-Although the rates indicated above are regarded as reasonable, the Courts shall consider individual circumstances and the local conditions and permit deposit at reduced rates where the actual expenses are likely to fall short of the minima or maxima. If any specimen of special value in any of the above classes is seized a special rate may be fixed by the Court. If any animal not specified is attached, the Court may fix the cost as a special case.

3. When the property attached consists of agricultural implements or other articles which cannot conveniently be removed and the attaching officer does not act under the proviso to rule 43, Order XXI, he may, unless the Court has otherwise directed, leave it in the village or place where it has been attached-

1[(a) in the charge of the decree-holder or his agent, or of the judgment-debtor, or of some other person, provided that the decree-holder or his agent or the judgment-debtor or other person, enters into bond in Form No. ISA of

Appendix E to this Schedule, with one or more sureties, to produce the attached property when called for and to be liable for any loss which the owner of the property attached may suffer due to wilful negligence of the bounden, or]

(b) in the charge of an officer of the Court, if a suitable place for its safe custody be provided and the remuneration of the officer for a period of fifteen days paid in advance.

1. Rule 3(a) subs, by Notification No. 4440-G, dated 29th May, 1941.

4. If attached property (other than live-stock) is not sold, under the proviso to rule 43, Order 21, or retained in the village or place where it is attached, it shall be brought to the Court-house at the decree-holder’s expense and delivered to the proper officer of the Court. In the event of the decree-holder failing to make his own arrangement for the removal of the property with safety, or paying the cost thereof in advance to the attaching officer, then, unless such payment has previously been made into Court, the attachment shall at once be deemed to be withdrawn and the property shall be made over to the person in whose possession it was before attachment.

5. When live-stock is attached it shall not, without the special order of the Court, be brought to the Court or its compound or vicinity, but shall be left at the village or place where it was attached in the manner and on the conditions set forth in rule 3 of this Order:

Provided that live-stock shall not be left in the charge of any person under clause (a) of the said rule unless he enters into a bond for the proper care and maintenance thereof as well as for its production when called for and that it shall not be left in charge of an officer of the Court under clause {b) of the said rule unless in addition to the requirements of the said clause provision be made for its care and maintenance.

6. When for any reason the attaching officer shall find it impossible to obtain compliance with the requirements of the preceding rule so as to entitle him to leave the attached live-stock in the village or place where it was attached and no order has been made by the Court for its removal to the Court, the attaching office shall not proceed with the attachment and no attachment shall be deemed to have been effected.

7. Whenever it shall appear to the Court that live-stock under attachment are not being properly tended or maintained the Court shall make such orders as are necessary for their care and maintenance and may if necessary direct the attachment to cease, and the leave-stock to be returned to the person in whose possession they were when attached. The Court may order the decree-holder to pay any expenses so incurred in providing for the care and maintenance of the live-stock, and may direct that any sum so paid be refunded to the decree-holder by any their party to the proceedings.

8. If under a special order of the Court live-stock is to be conveyed to the Court, the decree-holder shall make his own arrangement for such removal, and if he fails to do so the attachment shall be withdrawn and the property made over to the person in whose possession it was before attachment.

9. Nothing in these rules shall prevent the judgment-debtor or any person claiming to be interested in attached live-stock from making such arrangements for feeding, watering, and tending the same as may not be inconsistent with its safe custody, or contrary to an order of the Court.

10. The Court may direct that any sums which have been legitimately expended by the attaching officer or are payable to him, if not duly deposited or paid, be recovered from the sale-proceeds of the attached property, if sold, or be paid by the person declared entitled to delivery before he receives the same. The Court may also order that any sums deposited or paid under these rules be recovered as costs of the attachment from any party to the proceedings.

11. In the event of custodian of attached property failing, after due notice, to produce such property at the place named to the officer deputed for the purpose, or to restore it to its owner if so ordered or failing in the case of live-stock to maintain and take proper care thereof, he shall be liable to be proceeded against for the enforcement of his bond in the execution proceedings.

12. When property other than live-stock is brought to the Court, it shall immediately be made over to the Nazir, who shall keep it on his sole responsibility in such place as may be approved by the Court. If the property cannot from its nature or bulk be conveniently stored, or kept on the Court premises or in the personal custody of the Nazir, he may, subject to the approval of the Court, make such arrangements for its safe custody under his own supervision as may be most convenient and economical. If any premises are to be hired and persons are to be engaged for watching the property, the Court shall fix the charges for the premises and the remuneration to be allowed to the persons (not being officers of the Court) in whose custody the property is kept. All such costs shall be paid into Court by the decree-holder in advance for such period as (he Court may from time to time direct.

13. When attached live-stock is brought to Court under special order as aforesaid it shall be immediately made over to the Nazir, who shall be responsible for its due preservation and safe custody until he delivers it up under the orders of the Court.

14. If there be a pound maintained by Government or local authority in or near the place where the Court is held, the Nazir shall, subject to the approval of the Court, be at liberty to place in it such live-stock as can be properly kept there, in which case the pound-keeper will be responsible for the property to the Nazir and shall receive from the Nazir the same rates for accommodation and maintenance thereof as are paid in respect of impounded cattle of the same description.

15. If there be no pound available, or, if in the opinion of the Court, it be inconvenient to lodge the attached live-stock in the pound, the Nazir may keep them in his own premises, or he may entrust them to any person selected by himself and approved by the Court.

16. All costs for the keeping and maintenance of the live-stock shall be paid into Court by the decree-holder in advance for not less than fifteen days at a time as often as the Court may from time to time direct. In the event of failure to pay the costs within the time fixed by the Court, the attachment shall be withdrawn and the live-stock shall be at the disposal of the person in whose possession it was at the time of attachment.

17. So much of any sum deposited or paid into Court under these rules as may not be expended shall be refunded to the depositor.”

[Vide Notification No. 25585-G, dated 3rd November, 1933.]

Gauhati.-Same as in Calcutta.

ORDER XXII. DEATH, MARRIAGE AND INSOLVENCY OR PARTIES

ORDER XXII. DEATH, MARRIAGE AND INSOLVENCY OR PARTIES

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.

HIGH COURT AMENDMENT

Allahabad.-In Order XXII, in rule 1, at the end, insert the words “or to proceedings in the original Court taken after the passing of the preliminary decree where a final decree also requires to be passed having regard to the nature of the suit”.

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.

HIGH COURT AMENDMENT

Punjab and Haryana–In Order XXII, after rule 2, insert the following rules, namely:-

“2A. Every advocate appearing in the case who becomes aware of the death of a party to the litigation (where he appeared for him or not) must give intimation about the death of that party to the Court and to the person who is dominus litis.

2B. The duty to bring on record the legal representatives of the deceased-defendant shall be of the heirs of the deceased and not of the person who is dominus litis.” [Vide Punjab Government Gazette, Pt. III (L.S.), p. 304, dated 11th April, 1975 and Haryana Government Gazette, Pt. III (L.S.), p. 190, dated 25th March, 1975.]

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.

4. Procedure in case of death of one of several defendants 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 defendant 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.

1[(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 not withstanding 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 therefor 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 within 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.]

1. Ins. by Act No. 104 of 1976, sec. 73 (w.e.f. 1-2-1977).

1[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 by 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 ascertain 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.]

1. Ins. by Act No. 104 of 1976, sec. 72 (w.e.f. 1-2-1977).

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:

1[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.]

1. Ins. by Act No. 104 of 1976 (w.e.f. 1-2-1977).

6. No abatement by reason of death after hearing

Nothwithstanding 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.

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 to 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.

8. When plaintiffs 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 and awarding to the defendant the costs which he has insured in defending the same to be proved as a debt against the plaintiffs estate.

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 1[Indian Limitation Act, 1877 (15 of 1877)] shall apply to applications under sub-rule (2).

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]

1. See now the Limitation Act, 1963 (36 of 1963), Ss. 4 and 5.

2. Ins. by Act No. 104 of 1976 (w.e.f. 1-2-1977).

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, 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).

1[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 there upon 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.]

1. Ins. by Act No. 104 of 1976, sec. 73 (w.e.f. 1-2-1977).

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 respondent, and the word “suit” an appeal.

HIGH COURT AMENDMENTS

Andhra Pradesh.-Same as in Madras.

Calcutta.-In Order XXII, in rule 11, insert the following proviso, namely:-

“Provided always that where an Appellate Court has made an order dispensing with service of notice of appeal upon legal representatives of any person deceased under Order XLI, rule 14(3), the appeal shall not be deemed to abate as against such party and the decree made on appeal shall be binding on the estate or the interest of such party.”

[Vide Notification No. 10428-G, dated 25th July, 1928.]

Gauhati.-Same as in Calcutta.

Kerala.-In Order XXII, after rule 11, insert the following rule, namely:-

“11A. Entry on the record of the name of the representative of a deceased appellant or respondent in a matter pending before the High Court.-The entry on the record on the name of the representative of a deceased appellant or respondent in a matter pending before the High Court in its appellate jurisdiction, except in case, under appeal to the Supreme Court, may be performed by the Registrar, provided that contested applications and applications presented out of time shall be posted before a judge for disposal.” (w.e.f. 9-6-1959).

Madras.-In Order XXII, after rule 11, insert the following rule, namely:-

“11A. The entry on the record of the name of the representative of a deceased appellant or respondent in a matter pending before the High Court in its appellate jurisdiction, except in cases under appeal to the Supreme Court, shall be deemed to be a quasi judicial act within the meaning of section 128 (2) (i) of the Code of Civil Procedure and may be performed by the Registrar provided that contested applications and application presented out of time shall be posted before a Judge for disposal.”

12. Application of Order to proceedings.

Nothing in rules 3, 4 and 8 shall apply to proceedings in executive of a decree or order.

HIGH COURT AMENDMENTS

Allahabad.-In Order XXII, in rule 12 at the end, insert the words “or to proceedings in the original Court taken after the passing of the preliminary decree where a final decree also requires to be passed having regard to the nature of the suit”.

[Vide Notification No. 58435 (a)-(2), dated 7th February, 1931.]

Orissa.-In Order XXII, in rule 12, at the end, insert the words “or to proceedings in the original Court taking after the passing of the preliminary decree where having regard to the nature of the suit, a final decree is required to be passed”.

[Vide Notification No. 24-X-7-52, dated 30th March, 1954.]

ORDER XXIII. WITHDRAWAL AND ADJUSTMENT OF SUITS

1[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 a 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 preclude 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 plaintiffs.]

1. Subs, by Act No. 104 of 1976 for rule 1 (w.e.f. 1-2-1977).

HIGH COURT AMENDMENTS

Karnataka.-In Order XXIII, in rule 1, after sub-rule (4), insert the following sub-rule, namely:-

“(5) Where the plaintiff in a suit instituted or conducted under the provisions of rule 8 of Order 1 of this Code or all plaintiffs therein if there are more plaintiffs than one, apply for the permission to withdraw the suit, notice of such application shall be given in the manner prescribed by sub-rule (3) of Order 1 of this Code for issue of notice of institution of the suit, and the cost of such notice shall be borne by the plaintiff or the plaintiffs, as the case may be. If upon such application being made a defendant in the same suit having the same interest as that of the plaintiffs applies for permission to be transposed a§ plaintiff to conduct the suit further, he shall be permitted to do so and the plaintiffs application dismissed.” (w.e.f. 30-3-1967)

Orissa.-In Order XXII, in rule 1, in sub-rule (1), after the words “institution of a suit”, insert the words “but not after the passing of the preliminary decree in the suit”, (7-5-1954)

1[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.]

1. Ins. by Act No. 104 of 1976, s. 74 (w.e.f. 1-2-1977).

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.

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 1[in writing and signed by the parties] or where the defendant satisfied the plaintiff in respect of the whole or any part of the subject-matter of the suit, the Court shall order such agreement, compromise satisfaction to be recorded, and shall pass a decree is accordance therewith 2[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:]

1[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.]

2[Explanation-An agreement or compromise which is void or voidable under the Indian Contract Act, 1872 (9 of 1872), shall not be deemed to be lawful within the meaning of this rule;]

1. Ins. by Act 104 of 1976, sec. 74 (w.e.f. 1-2-1977).

2. Subs. by Act 104 of 1976, sec. 74. for “so far it relates to the suit” (w.e.f. 1-2-1977).

HIGH COURT AMENDMENTS

Allahabad.-In Order XXIII, in rule 3,-

(i) between the words ‘or compromise’ and ‘or where’, insert the words, ‘in writing duly signed by the parties’ and between the words ‘subject-matter of the suit’ and the words ‘the Court’, insert the words ‘and obtained an instrument in writing duly signed by the plaintiff, (ii) at the end of the rule, insert the following proviso and Explanation, namely:-

“Provided that the provisions of this rule shall not apply to or in any way affect the provisions of Order XXXIV, rules 3, 5 and 8.

Explanation.-The expressions, ‘agreement’ and ‘compromise’, include a joint statement of the parties concerned or their counsel recorded by the Court, and the expression ‘instrument’ includes a statement of the plaintiff or his counsel recorded by the Court.”

[Vide Notification No. 155/Alld-87, dated 31st August, 1974.]

[Ed.-This amendment relates to rule 3 prior to its amendment made by Central Act 104 of 1976, sec. 74 (w.e.f. 1-2-1977).]

Karnataka.-In Order XXIII,-

(i) re-number rule 3 as sub-rule (1) thereof

(ii) after sub-rule (1) as so renumbered, insert the following sub-rule, namely:-::

“(2) Where any such agreement or compromise as is referred to in sub-rule (1) is placed before the Court by a party suing or defending in a representative capacity in a suit instituted, conducted or defended under the provisions of rule 8 of Order I of this Code, the Court shall not proceed with the consideration of the same or to pass a decree in accordance therewith without first notice of the application for recording such agreement or compromise in the manner prescribed in sub-rule (1) of rule 8 of Order 1 of this Code for giving notice of the institution of such suit. The expenses of giving such notice shall be borne by such party or parties as the Court may direct.” (w.e.f. 30-3-1967)

Madras.-In the Order XXIII, in rule 3, in the proviso, for the words “Provided that”, the following shall be substituted, namely:-

“Provided that the subject-matter of the agreement, compromise or satisfaction, in so far as it differs from the subject-matter of the suit, is within the territorial and pecuniary jurisdiction of the Court concerned: Provided further that.”

[Vide R.O.C. No. 3382/78-F1 and S.R.O. No. G-3/81 (w.e.f. 23-1-1981).]

Kerala.-In Order XXIII/ after rule 3, insert the following rule, namely:-

“3A. Settlement of oath.–If the parties agree to have the suit or any part of it decided by an oath taken by one of them in Court or elsewhere and tender a written agreement signed by both of them setting forth the terms of the oath and the place where it is taken, the Court may accept such agreement. After the oath has been taken in the manner proposed, the Court shall decide the case in terms of the agreement. After the agreement has been accepted by the Court, it shall not be competent to any of the parties to withdrawn therefrom without the leave of the Court. If any party withdraws or refuses to take the oath without lawful excuse, the Court may decide the case against him or pass such order as it deems proper.” (w.e.f. 9-6-1959)

1[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.

1. Ins. by Act 104 of 1976, sec. 74 (w.e.f. 1-2-1977).

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 so recorded shall be void.

(2) Before granting such leave, the Court shall give notice in such manner as it may think fit to such persons 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.]

4. Proceeding 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

1. Deposit by defendant of amount in satisfaction of claim

The defendant in any suit to recover a debt or damage may, at any stage of the suit, deposit in Court such sum of money as he considers a satisfaction in full of the claim.

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.

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.

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 suit for the balance; and, if the Court decides that the deposit by the defendant was a full satisfaction of the plaintiffs 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 circumstance mentioned in illustration (a). On the plaint being filed, A disputes the claim. Afterwards A pays the money into Court. B accepts it 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

1[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 plaintiff are, residing out of India and that such plaintiff does not possess or that no one of such plaintiffs possesses any sufficient immovable property with 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).]

1. Subs. by Act 66 of 1956, sec. 14 for rule 1 (w.e.f. 1-1-1957).

HIGH COURT AMENDMENTS

Allahabad.-In Order XXV, for rule 1, substitute the following rule, namely:-

“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 reason 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 outside the State and that such plaintiffs does not possess or that one of such plaintiffs possesses any sufficient immovable property within the State other than the property in suit or that the plaintiff is being financed by another person.

(2) Whoever leaves that State 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 outside the State within the meaning of the proviso to sub-rule (1).” (w.e.f. 5-2-1983)

Madhya Pradesh.-In Order XXV, in rule (1), in proviso, at the end, insert the words “or that any plaintiff is being financed by a person not a party to the suit”, (w.e.f. 16-9-1960)

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.

HIGH COURT AMENDMENTS

Bombay.-In Order XXV, after rule 2, insert the following rule, namely:-

“3. Power to implead and demand security from third person financing litigation.-fl) Where any plaintiff has for the purpose of being financed in the suit transferred or agreed to transfer any share or interest in the property in the suit to a person who is not already a party to the suit, the Court may order such person to be made a plaintiff to the suit if he consents, and may either of its own motion or on the application of any defendant order such person, within a time to be fixed by it to give security for the payment of all costs incurred and likely to be incurred by any defendant. In the event of such security not being furnished within the time fixed, the Court may make an order dismissing the suit so far as his right to, or interest in the property in suit is concerned, or declaring that he shall be debarred from claiming any right to or interest in the property in suit.

(2) If such person declines to be made a plaintiff, the Court may implead him as a defendant and may order him, within a time to be fixed by it, to give security for the payment of all costs incurred and likely to be incurred by any other defendant. In the event of such security not being furnished within the time fixed, the Court may make an order declaring that he shall be debarred from claiming any right to or interest in the property in suit.

(3) Any plaintiff or defendant against whom an order is made under this rule may apply to have it set aside and the provisions of sub-rules (2) and (3) of rule 2 shall apply mutatis mutandis to such application.” (w.e.f. 1-10-1983)

Gujarat.-Same as in Bombay,

Karnataka.-In Order XXV, in rule 2, after sub-rule (3) insert the following sub-rule, namely:-

“(4) The provisions of section 5 of the Limitation Act, 1963, shall apply to applications under this rule.” (w.e.f. 30-3-1967)

Madhya Pradesh.-In Order XXV, for rule 3, substitute the following rule, namely:-

“3. Power to implead and demand security from a third person financing litigation.- (1) Where any plaintiff has, for the purpose of being financed in the suit, transferred or agreed to transfer any share or interest in the property in suit, to a person who is not already a party to the suit, the Court may order such person to be made a plaintiff to the suit, if he consents and may either of its own motion or on the application of any defendant order such person, within a time to be fixed by it, to give security for the payment of all costs incurred and likely to be incurred by any defendant. In the event of such security not being furnished within the time fixed, the Court may make an order dismissing the suit so far as his right to, or interest in the property in suit is concerned or declaring that he shall be debarred from claiming any right to, or interest in the property in suit.

(2) If such person declines to be made a plaintiff the Court may implead him as a defendant and may order him, within a time to be fixed by it, to give security for the payment of all costs incurred and likely to be incurred by any other defendant. In the event of such security not being furnished within the time fixed the Court may make an order declaring that he shall be debarred from claiming any right to, or interest in, the property in suit.

(3) Any plaintiff or defendant against whom an order is made under this rule may apply to have it set aside and the provisions of sub-rules (2) and (3) of rule 2 shall apply mutatis mutandis to such application.” (w.e.f. 16-9-1960)

ORDER XXVI. COMMISSIONS

Commissions to examine witnesses

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:

1[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 infertility of any person, without calling the medical practitioner as a witness.]

1. Ins, by Act No. 104 of 1976, sec. 75 (w.e.f. 1-2-1977).

HIGH COURT AMENDMENT

Allahabad.-In Order XXVI, for rule 1, substitute the following rule, namely:-

“1. Commission to examine witness.-Any Court may, in any suit, if for the reasons to be recorded in writing, it thinks it necessary to do so in the interest of justice or expedition, issue a Commission for the examination of any person on interrogatories or otherwise.”

[Vide Notification No, 504/XI1I-B-31, dated 22nd November, 1980.]

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.

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.

HIGH COURT AMENDMENT

Allahabad.-In Order XXVI, for rule 3, substitute the following rule, namely:-

“3. Commission to whom issued.-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 thinks fit to execute it and the Court shall direct whether the commission shall be returned to itself or to any subordinate Court.” (w.e.f. 22-11-1980)

4. Persons for whose examination commission may issue

(1) Any Court may in any suit issue a commission 1[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) 2[any person in the service of the Government] who cannot in the opinion of the Court, attend without detriment to the public service:

3[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 may this rule shall direct whether the commission shall be returned to itself or to any subordinate Court.

1. Subs, by Act No. 104 of 1976, sec. 75, for “for the examination of (w.e.f. 1-2-1977).

2. Subs. by A.O. 1937, for “any civil or military officer of the Government.”

3. Ins. by Act No. 104 of 1976, sec. 75 (w.e.f. 1-2-1977).

HIGH COURT AMENDMENTS

Allahabad,-In Order XXVI, omit rule’4. (w.e.f. 18-9-1980)

Madhya Pradesh.-In Order XXVI, in rule 4, in sub-rule (1), after clause (c), insert the following clause, namely:-

“(d) any person who by reason of anything connected with the war cannot conveniently be spared.”

[Vide Notification No. 3409, dated 26th June, 1943.]

Rajasthan.-In Order XXVI, after rule 4, insert the following rule, namely:-

“4A. Commission for examination of any person resident with Court’s local limits.- (I) Notwithstanding anything contained in these rules, any Court may, in the interests 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.

(2) The provisions of sub-rule (1) shall apply to proceedings in execution of a decree or order.”

[Vide Rajasthan Gazette, Extra, Ft, IV (Ga), Sec. 2, dated 1st December, 1973.]

1[4A. Commission for examination of any person resident within the local BE 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.]

1. Ins. by Act No. 46 of 1999 section 29 (w.e.f.. 1-7-2002)

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 B 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.

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.

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 1[subject to the provisions of rule 8] from part of the record of the suit.

1. Subs, by Act No. 104 of 1976, sec. 75, for “subject to the provisions of the next following rule)” (w.e.f. 1-2-1977).

HIGH COURT AMENDMENT

Allahabad.-In Order XXVI, in rule 7, omit the words “subject to the provision of rule 8” and at the end, insert the words “shall be read as evidence in the suit”, (w.e.f. 22-11-1980)

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 infermity 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.

HIGH COURT AMENDMENT

Allahabad,-In Order XXVI, omit rule 8. (w.e.f. 22-11-1980)

Commissions for local investigations

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 elecidating 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.

HIGH COURT AMENDMENTS

Calcutta.-In Order XXVI, in rule 9, omit the proviso.

[Vide Notification No. 11223-G, dated 7th April, 1933.]

Gauhati.-Same as in Calcutta.

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 deposition 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 suit may examine the Commissioner personally in open Court touching any part 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.

1[Commissions for scientific investigation, performance of ministerial act and sale of movable property

1. Ins. by Act No. 104 of 1976 (w.e.f. 1-2-1977).

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 the 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.

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.

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

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.

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

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.

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 Commission (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 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.

HIGH COURT AMENDMENTS

Orissa and Patna.-In Order XXVI, in rule 14, for sub-rules (2) and (3), substitute the following sub-rules, namely:-

“(2) The Commissioner shall then prepare and sign a report or the commissioner (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 necessary) by metes and bounds. The Commissioner or Commissioners shall append to the report or where there is more than one to each report a schedule showing the plots and areas allotted to each party and also unless otherwise directed by the Court, a map showing in different colours the plots or portions of plots allotted to each party. In the event of a plot being sub-divided the area of each sub-plot shall be given in the schedule and also measurements showing how the plot is to be divided. Such report or reports with the schedule and map, if any, 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 and when drawing up the final decree shall incorporate in its decree the schedule and the map, if any, mentioned in sub-rule (2) above, as confirmed or varied by the Court. The whole report or reports of the Commissioner or Commissioners shall not ordinarily be entered in the decree. 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.” (w.e.f. 4-3-1932)

General provisions

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.

HIGH COURT AMENDMENTS

Andhra Pradesh.-Same as in Madras.

Karnataka.-Same as in Madras with substitution of the words “any of the Courts mentioned in clause (c) of section 78 of this Code” for the words “foreign Courts under the provisions of section 78”.

Kerala.-Same as in Madras.

[Vide Notification No. BI-3312/5S, dated 7th April, 1959.]

Madras.-In Order XXVI,-

(i) renumber rule 15 as sub-rule (1) thereof;

(ii) after sub-rule (1) as so renumbered, insert the following sub-rule, namely:-

“(2) Before executing and returning any commission issued by foreign Courts under the provisions of section 78 the Court or the Commissioner required to execute the commission may levy such fees as the High Court may from time to time prescribe in this behalf in addition to the fees prescribed for the issue of summons to witnesses and for expenses of such witnesses under rule 2 of Order XVI.”

Orissa.-In Order XXVI, in rule 15, at the end, insert the words “any after the issue of such omission may order such further sums to be paid into Court from time to time by either party as the Court may consider necessary”.

[Vide Notification No. 24-X-7-52, dated 30th March, 1954.]

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.

1[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 gtound of privilege.

(2) No answer taken down under sub-rule (1) shall be read was evidence in the suit except by the order of the Court.]

1. Ins. by Act No. 104 of 1976, sec. 75 (w.e.f. 1-2-1977).

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 1[India], and for the purposes of this rule the Commissioner shall be deemed to be a Civil Court:

2[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 on 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.

1. Subs. by Act 2 of 1951, sec. 3, for “the States”.

2. Ins. by Act No. 104 of 1976, sec. 75, (w.e.f. 1-2-1977).

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.

HIGH COURT AMENDMENTS

Allahabad.-In Order XXVI, in rule 18, in sub-rule (1), after the words “agents or pleaders”, substitute a comma for the full stop and insert the words “and shall direct the party applying for the examination of the witness or in the discretion any other party to the suit, to supply the Commissioner with a copy of the pleadings and issues.”

[Vide Notification No. 4084/35 (a)-3(7), dated 24th July, 1926.]

Orissa.-Same as in Allahabad, (w.e.f. 29-12-1961)

1[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.

1. Ins. by Act No. 104 of 1976, sec. 75 (w.e.f. 1-2-1977).

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 at the instance of foreign Tribunals

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 the rule 20, issue a commission for the examination of such witness.

(2) Evidence may be given of the matters specified in clauses (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.

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.

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.

HIGH COURT AMENDMENT

Kerala.-In Order XXVI, for rule 21, substitute the following rule, namely:-

“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 to any person whom the Court thinks fit to execute the commission.” (w.e.f. 9-6-1959).

22. Issue, execution and return of commissions, and transmission of evidence to foreign Court

The provisions of rules 6, 15 1[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 Central Government, along with the letter of request for transmission to the foreign court.]

1. Subs, by Act No. 104 of 1976, for “16, 17 and 18” (w.e.f. 1-2-1977).

HIGH COURT AMENDMENTS

Andhra Pradesh.-Same as in Madras.

Karnataka.-In Order XXVI, after rule 22, insert the following rules, namely:-

“23. (1} The Court may in any suit issue a commission to such person or persons as it thinks fit to translate accounts and documents which are not in the language of the Court.

(2) Before issuing such a commission the Court may order such sum, if any, as it thinks reasonable for the expenses of the commission to be paid into Court by the party at whose instance or for whose benefit the commission has been issued within such time as may be fixed by the Court.

(3) The report of the Commissioner shall be evidence in the suit and shall form part of the record.

(4) Where however a translation as required by rule 12 of Order XII of this Code has already been filed into Court, no further commission under this rule need be issued.

(5) A translation submitted by the Commissioner or Commissioners under this rule shall be verified in the manner prescribed in rule 12 of Order XIII of this Code.

24. The provisions of this order shall apply so far as may be, to proceedings in execution of decree or order. Verified in the manner prescribed in rule 12 of Order XIII of this Code.” (w.e.f. 30-3-1967)

Kerala.-Same as in Madras.

[Vide Notification No. BI-3312/5S, dated 9th June, 1959.]

Madras.-In Order XXVI,-

(a) after rule 22, insert the following rule, namely:-

“23. Application of order to execution proceedings.-The provisions of this Order and of Order XXVIA shall apply, so for as may be, to proceedings in execution of a decree or Order.” (w.e.f. 9-6-1923)

(b) after Order XXVI, insert the following Order, namely:-

ORDER XXVI A

1. The Court may in any suit issue a commission to such person as it thinks fit to translate accounts and other documents which are not in the language of the Court.

2. The report of the Commissioner shall be evidence in the suit and shall form part of the record.

3. Before issuing any-commission under this Order, the Court may order such sum

(if any) as it thinks reasonable for the expense of the commission to be, within a time to be fixed, paid in the Court by the party at whose instance or for whose benefit the commission is issued.”

Orissa.-In Order XXVI –

(a) after rule 22, insert the following rules, namely:

“23. (i) The Court may in any suit issue a commission to such persons as it thinks fit to translate accounts or other documents which are not in Court language or to inspect documents for purposes to be specified in the order appointing such Commissioner.

(ii) The report of the Commissioner shall be evidence in the suit and shall form part of the record.

(iii) Before issuing any commission under this Order, the Court may order such sum (if any) as it thinks reasonable for the expense of the commission to be, within a time to be fixed, paid in the Court by the party at whose instance or for whose benefit the commission is issued.”

ORDER XXVII. SUITS BY OR AGAINST THE GOVERNMENT OR PUBLIC OFFICERS IN THEIR OFFICIAL CAPACITY

ORDER XXVII. SUITS BY OR AGAINST THE GOVERNMENT OR PUBLIC OFFICERS IN THEIR OFFICIAL CAPACITY

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.

STATE AMENDMENTS

Uttar Pradesh.-In the marginal heading of the Order, after the words “official capacity”, insert the words “or Statutory Authorities, etc.” [U.P. Act 57 of 1976].

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 the recognised agents by whom appearances, act and applications under this Code may be made or done on behalf of the Government.

3. Plaints in suits by or against Government

In suits by or 1[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 1[the appropriate name as provided in section 79.2[* * *]]

1. Subs. A.O. 1937, for “against the Secretary of State for India in Council”.

2. Certain words omitted by the A.O. 1948.

1[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.]

1. Subs. by the A.O. 1937, for rule 4.

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 the Government and may extend the time at its discretion [but the time so extended shall not exceed two months in the aggregate.]

HIGH COURT AMENDMENTS

Andhra Pradesh.-Same as in Madras.

Karnataka.-In Order XXVII, in rule 5, after the words “instructions to the Government pleader”, insert the words “or recognised agents of the Government”.

Kerala.-Same as in Madras.

Madras.-In Order XXVII, in rule 5, for the words “a reasonable time”, substitute the words “not less than three months’ time from the date of summons”.

1[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.

1. Ins. by Act No. 104 of 1976, sec. 76 (w.e.f. 1-2-1977).

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.]

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.

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 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.

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.

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.

HIGH COURT AMENDMENTS

Andhra Pradesh.-Same as in Madras.

Madras.-In Order XXVII, re-number rule 8A as rule 9.

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;

1[* * *]

(c) in relation to any suit by or against a 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.

1. Clause (b) omitted by the A.O. 1948.

STATE AMENDMENT

Uttar Pradesh.-In Order XXVII, after rule 9, insert the following rule, namely:-

“10- Suits by or-against statutory authority.-(1) Any authority or corporation, consituted 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 *[and to Registrar of the High Court at Allahabad or a Lucknow Bench, as the case may be].

(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 57 of 1976, sec. 11 (w.e.f. 1-1-1977) and * Notification dated 10th February, 1981 (w.e.f. 3-10-1981).]

HIGH COURT AMENDMENTS

Allahabad.-In Order XXVII, after rule 8B, insert the following rule, namely:-

“9. In every case in which the District Government Counsel appears for the Government as a party on its own account, or for the Government as undertaking under the provisions of rule 8(1), the defence of a suit against an officer of the Government, he shall, in lieu of a vakalatnama, file a memorandum on unstamped paper signed by him and stating on whose behalf he appears. Such memorandum shall be, as nearly as may be, in the terms of the following form:-

TITLE OF THE SUIT, ETC.

1. AB. District Government Counsel appears on behalf of the Government of India (or the Government of Uttar Pradesh, or as the case may be) respondent (or etc.). in the suit:-

or, on behalf of the Government [which under order 27, rule 8(1) of Act No. V of 1908, has undertaken the defence of the suit], respondent (or, etc.), in the suit.”

{Vide Notification No. 1953/35 (a), dated 22nd May, 1915.]

Andhra Pradesh.-Same as in Madras.

Madras.-In Order XXVII, renumber rules 8A and 8B as rules 9 and 10 respectively, (w.e.f. 2-3-1942)

Orissa.-In Order XXVI, insert the following rule, namely:-

“9. In every case in which the Government pleader appears for the Government as a party on it own accounts or for the Government as undertaking under the provision of rule 8(1), the defence of a suit against an officer of a Government, he shall in lieu of a vakalatnama, file a memorandum of unstamped paper signed by him and stating on whose behalf he appears.” (w.e.f. 14-10-1960)

[ORDER XXVIIA. SUITS INVOLVING A SUBSTANTIAL QUESTION OF LAW AS TO THE INTERPRETATION OF [THE CONSTITUTION] [OR AS TO THE VALIDITY OF ANY STATUTORY INSTRUMENT]

1[ORDER XXVIIA. SUITS INVOLVING A SUBSTANTIAL QUESTION OF LAW AS TO THE INTERPRETATION OF 2[THE CONSTITUTION] 3[OR AS TO THE VALIDITY OF ANY STATUTORY INSTRUMENT]

1. Order XXVIIA (containing rules 1, 2, 3, and 4) Ins. by act 23 of 1942, sec.2.

2. Subs. by the A.O. 1950, for “the Government of India Act, 1935, or any Order-inCouncil made thereunder”.

3. Ins. By Act 104 of 1976, sec. 77 (w.e.f. 1-2-1977).

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.

1[lA. 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 1, is involved, the Court shall not proceed to determine that question except after giving notice-

(a) to the Government pleader, if the question concerns the Government, or

(b) to the authority which issued the statutory instrument, if the question concerns an authority other than Government.]

1. Ins. by Act No. 104 of 1976, sec.77, (w.e.f. 1-2-1977).

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 it 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.

1[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 1A 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.]

1. Ins. by Act No. 104 of 1976, sec. 77, (w.e.f. 1-2-1977).

1[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.]

1. Subs. by Act No. 104 of 1976, sec. 77 for rule 3 (w.e.f. 1-2-1977).

4. Application or Order to appeals

In application of this Order to appeals the word “defendant” shall be held to include a respondent and the word “suit” an appeal.

1[Explanation-In this Order, “statutory instrument” means a rule, notification, bye-law order, scheme or form made as specified under any enactment.]

1. Ins. by Act No. 104 of 1976, sec. 77, (w.e.f. 1-2-1977).

ORDER XXVIII. SUITS BY OR AGAINST MILITARY OR NAVAL MEN 1[OR AIRMEN

ORDER XXVIII. SUITS BY OR AGAINST MILITARY OR NAVAL MEN 1[OR AIRMEN

1. Ins. by Act 10 of 1927, sec. 2 and Sch. I.

1. Officers, soldiers, sailors or airmen who cannot obtain leave may authorize any person to sue or defend for them

(1) Where any officer, soldier, sailor or airman, actual 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 authorize 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 airman 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 which the officer, soldier sailor or airman belongs.

2. Person so authorized may act personally or appoint pleader

Any person authorized 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.

3. Service on person so authorized, or on his pleader, to be service

Process served upon any person authorized by an officer soldier, sailor or airman under rule 1 or upon any pleader appointed as aforesaid by such person shall be as effectual as if they had been served on the party in person.

ORDER XXIX. SUITS BY OR AGAINST CORPORATIONS

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 security or by any director or other principal officer of the corporation who is able to depose to the facts of the case.

HIGH COURT AMENDMENTS

Andhra Pradesh.-Same as in Madras.

Kerala.-In Order XXIX, after rule 1, insert rule 1A which is same as in Madras with the addition of the following as marginal note:-

“Time to be fixed in the summons for appearance in suits against local authority”.

[Vide Notification No. Bl-3312/58, dated 7th April, 1959.]

Madras.-In Order XXIX, after rule 1, insert the following rule, namely:-

“1A. In suits against a local authority the Court in fixing the day for the defendant to appear and answer shall allow not less than two months time between the date of summons and the date for appearance.”

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.

STATE AMENDMENT

Uttar Pradesh.-In Order XXIX, in rule 2, after clause (a), insert the following clause, 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, sec. 12 fw.e.f. 1-1-1977}.]

HIGH COURT AMENDMENT

Karnataka.-In Order XXIX, after rule 2, insert the following rule, namely;-

“2A. Where the suit is against a local authority the Court in fixing the day for such authority to answer the plaint shall allow a reasonable time for the necessary communication with any department of the Government and for the issue of the necessary instruction to the pleader of the authority, and may extend the time at its discretion.”

[Vide R.O.C. 2526 of 1959, dated 9th February, 1967.]

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.

ORDER XXIX
SUITS BY OR AGAINST CORPORATIONS

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 security or by any director or other principal officer of the corporation who is able to depose to the facts of the case.

HIGH COURT AMENDMENTS

Andhra Pradesh.-Same as in Madras.

Kerala.-In Order XXIX, after rule 1, insert rule 1A which is same as in Madras with the addition of the following as marginal note:-

“Time to be fixed in the summons for appearance in suits against local authority”.

[Vide Notification No. Bl-3312/58, dated 7th April, 1959.]

Madras.-In Order XXIX, after rule 1, insert the following rule, namely:-

“1A. In suits against a local authority the Court in fixing the day for the defendant to appear and answer shall allow not less than two months time between the date of summons and the date for appearance.”

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.

STATE AMENDMENT

Uttar Pradesh.-In Order XXIX, in rule 2, after clause (a), insert the following clause, 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, sec. 12 fw.e.f. 1-1-1977}.]

HIGH COURT AMENDMENT

Karnataka.-In Order XXIX, after rule 2, insert the following rule, namely;-

“2A. Where the suit is against a local authority the Court in fixing the day for such authority to answer the plaint shall allow a reasonable time for the necessary communication with any department of the Government and for the issue of the necessary instruction to the pleader of the authority, and may extend the time at its discretion.”

[Vide R.O.C. 2526 of 1959, dated 9th February, 1967.]

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.

ORDER XXX. SUITS BY OR AGAINST FIRMS AND PERSONS CARRYING ON BUSINESS IN NAMES OTHER THAN THEIR OWN

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 or the defendant, suffice such pleading or other document is signed, verified or certified by any one of such persons.

HIGH COURT AMENDMENTS

Delhi.-Same as in Punjab.

Haryana.-Same as in Punjab.

Himachal Pradesh.-Same as in Punjab.

Punjab.-In Order XXX, in rule 1, at the end, insert the following “Explanation “, namely:-

“Explanation.-This rule applied to a joint Hindu family trading partnership.”

[Vide Notification No. 2212-G, dated 12th May, 1909.]

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:

1[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.]

1. Subs, by Act No. 104 of 1976 for the proviso (w.e.f. 1-2-1977).

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 or 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.

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.

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.

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.

HIGH COURT AMENDMENT

Orissa.- In Order XXX, in rule 6, at the end, insert the following words, namely:-

“But the decree shall, however, cointain the names of all such partners.” (w.e.f. 7-5-1954)

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.

1[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 determinig 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 laibility of that person as a partner of the firm in execution of any decree that may be passed against the firm.]

1. Subs, by Act No. 104 of 1976 for rule 8 (w.e.f. 1-2-1977).

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 not 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.

1[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.]

1. Subs, by Act No. 104 of 1976 for rule 10 (w.e.f. 1-2-1977).

ORDER XXXI. SUITS BY OR AGAINST TRUSTEES, EXECUTORS AND ADMINISTRATORS

ORDER XXXI. SUITS BY OR AGAINST TRUSTEES, EXECUTORS AND ADMINISTRATORS

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 Administator 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.

2. Joinder of trustee, 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.

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

ORDER XXXII. SUITS BY OR AGAINST MINORS AND PERSONS OF UNSOUND MIND

1. Minor to sue by next friend

Every suit by a minor shall be instituted in his name by a person who in such shall be called the next friend of the minor.

1[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.]

1. Ins. by Act 104 of 1976, sec. 79 (w.e.f. 1-2-1977).

HIGH COURT AMENDMENTS

Delhi.-Same as in Punjab.

Himachal Pradesh.-Same as in Punjab.

Punjab.-In Order XXXII, in rule 1, at the end, insert the following words, namely:-

“Such person may be ordered to pay any costs in the suit as if he were the plaintiff.”

[Vide Notification No. 2212-G, dated 12th May, 1909.]

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.

1. Ins. by Act No. 104 of 1976 (w.e.f. 1-2-1977).

1[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 the 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.]

1. Ins. by Act 104 of 1976, sec. 79 (w.e.f. 1-2-1977).

3. Guardian for the suit to be appointed by Court for minor defendant-

(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 1*** to any guardian of the minor appointed or declared by an authority competent in that behalf, or, where there is no such guardian,

2[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 2[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.

3[(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.

1. The words “to the minor and” omitted by Act No. 104 of 1976.

2. Subs. by Act No. 104 of 1976 for certain words (w.e.f. 1- 2-1977).

3. Ins. by Act No. 104 of 1976, (w.e.f. 1-2-1977).

HIGH COURT AMENDMENTS

Allahabad.-In Order XXXII, in rule 3,-

(a) in sub-rule (3), at the end, delete the full stop and insert the following words, namely:-

“and shall also contain the names and addresses of all probable guardians including any guardian of the minor appointed or declared by an authority competent in that behalf, or the father or the other natural guardian of the minor, or where there is no father or other natural guardian the person in whose care the minor is.”

(b) for sub-rule (4), substitute the following sub-rule, namely:-

“(4) The Court shall cause notice of such application to be served upon the minor as also upon all the probable guardians named in the application and such other persons as it may deem fit calling upon them to file objections, if any, to the appointment, etc. the proposed or any other probable guardian of the minor. In case any person himself desires to be appointed guardian of the minor instead of the proposed guardian, he shall furnish an affidavit verifying the fact he 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.

The Court shall after hearing the objections, if any, and considering the respective claims of all persons desirous of being appointed guardian including the proposed guardian, such person as guardian appoint of the minor as it may deem fit.”

(c) in sub-rule (4) insert the following proviso, namely:-

“Provided that if the minor is under twelve years of age no such notice shall be issued to him.”

[Vide Notification No. 43 VIId-29, dated 1st June, 1957.]

Andhra Pradesh.-Same as in Madras.

Delhi.-Same as in Punjab.

Himachal Pradesh.-Same as in Punjab.

Karnataka.-In Order XXXII, for rule 3, substitute the following rule, namely:-

“3. (1) Same as sub-rule (1) of Madras with substitution of the words “or in the case of a guardian for the suit a plaintiff” by the words “in the suit or in the case of a guardian a plaintiff in the suit”.

(2) Same as sub-rule (2) of Madras with insertion of the words “in writing” after “for reasons to be recorded”.

(3) Same as sub-rule (3) of Madras with addition at the end of: “A person appointed as guardian under this sub-rule shall, unless his appointment is terminated by retirement or removal by the order of Court on application made for the purpose or by his death, continue throughout all proceedings in the suit or arising out of the suit including proceedings in any appeal or in revision and any proceedings in execution of a decree and the service of any processes in any such proceeding on the said guardian if duly made shall be deemed to be good service for the purpose of such proceedings. r

(4) Same as sub-rule (4) of Madras with the following modifications:-

(i) Before the words “set forth” insert “whether necessary”;

(ii) Omit the words within brackets and the last sentence.

(5) Same as sub-rule (5) of Madras.

(6) Same as sub-rule (6) of Madras with substitution of the word “party” for the words “plaintiff petitions”.

(7) No order shall be made on any application under sub-rule (4) above except upon notice to the minor and also 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 natural guardian of the minor or where there is no father or natural guardian upon notice to the person in whose actual care the minor is and after hearing any objection which may be urged on behalf of any person so served with notice. The notice required by this sub-rule shall be served at least seven clear days before the day named in the notice for hearing of the application.

(8) Where none of the persons mentioned in the last preceding sub-rule is willing to act as guardian, the Court shall direct notice to other person or persons proposed for appointment as guardian either simultaneously to some or all of them or successively as it may consider convenient or desirable in the circumstances of the case. The Court shall appoint such person as it thinks proper from among those who have signified their consent and intimate the fact of such appointment to the person appointed by registered post unless he is present at the time of appointment either in person or by pleader.

(9) No person shall be appointed guardian for the suit without his consent and except in cases where an applicant himself prays for his appointment as guardian notices issued shall clearly require the party served to signify his consent or refusal to act as guardian.

(10) Same as sub-rule (10) of Madras with insertion of the words “or pleader” after the words “by that officer”.

(11) Same as sub-rule (11) of Madras.”

Kerala.-In Order XXXII, in rule 3,-

(i) substitute sub-rule (2) which is the same as sub-rule (4) of Madras.

(ii) in sub-rule (3), at the end, insert the following, namely:- ‘

“The affidavit shall further state the name of the person or persons on whom notice has to be served under the provisions of sub-rule (4).”

(iii) in sub-rule (4), insert the following proviso, namely:-

“Provided that if the minor is under 15 years of age no such notice shall be issued to him.” (w.e.f. 9-6-1959)

Madhya Pradesh.-In Order XXXII, for rule 3, substitute the following rule, namely:-

“3. Guardian for the suit to be appointed by Court for minor defendant:-(1) Where the defendant is a minor, the Court, not being satisfied of the fact of his minority, shall appoint a proper person to be guardian for the suit of such minor.

(2) 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 proceeding arising out of the suit including proceedings in any appellate or revisional Court and any proceedings in the execution of a decree.” (w.e.f. 16-9-1960)

Madras.-In Order XXXII, for rules 3 and 4, substitute the following rules, namely:-

“3. Qualifications to be a next friend or guardian.-(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 that person is not adverse to that of the minor and that he is not in the case 6f a next friend, defendant, or in the case of a guardian for the suit, a plaintiff. ,.

(2) Appointed or declared guardians to be preferred and to be superseded only for reasons recorded.-Where a minor has a guardian appointed or declared by competent authority no person other than the 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) Guardians to be appointed by Court.-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 the minor.

(3A) A person appointed under sub-rule (3) 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 proceeding in execution of a decree.

(4) Appointment to be on application and where necessary after notice to proposed guardian.-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. The application, where it is by the plaintiff, shall set forth, in the order of their suitability, a list of persons {with their full addresses for service of notice in Form No. 11A set forth in Appendix H. hereto) who are competent and qualified to act as guardian for the suit for the minor defendant. The Court may, for reasons to be recorded in any particular case, exempt the applicant from furnishing the list referred to above.

(5) Contents of affidavit in support of the application for appointment of guardian.- The application referred to in the above sub-rule whether made by the plaintiff or on behalf of the minor defendant shall be supported by an affidavit verifying the fact that the proposed guardian has not or that no one of the proposed guardians has any interest in the matters in controversy in the suit adverse to that of the minor and that the proposed guardian or guardians are fit persons to be so appointed.

The affidavit shall further state according to the circumstances of each case (a) particulars of any existing guardian appointed or declared by competent authority, (b) the name and address of the person, if any, who is the de facto guardian of the minor, (c) the names and addresses of persons, if any, who in the event of either the natural or the de facto guardian or the guardian appointed or declared by competent authority, not being permitted to act, are by reason of relationship or interest or otherwise, suitable persons to act as guardians for the minor for the suit.

(6) Application for appointment of guardian to be separate from application for bringing on record the legal representatives of a deceased party.-An application for the appointment of a guardian for the suit of a minor shall not be combined with an application for bringing on record the legal representatives of a deceased plaintiff or defendant. The applications shall be by separate petitions.

(7) Notice of application to be given to persons interested in the minor defendant other than the proposed guardian.-No order shall be made on any application under sub-rule (4) above except upon notice to any guardian of the minor appointed or declared by an authority competent in that behalf or where there is no guardian, upon notice to the father or other natural guardian of the minor, or where there is no father 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.

The notice required by this sub-rule shall be served six clear days before the day named in the notice for the hearing of the application and may be in Form No. 11 set forth in Appendix H hereto.

(8) Special provision to shorten delay in getting a guardian appointed.-Where the application is by the plaintiff, he shall, along with his application and affidavit referred to in sub-rules (4) and (5) above, produce the necessary forms in duplicate filled in to the extent that is possible at that stage, for the issue simultaneous of notices to two at least of the proposed guardians for the suit to be selected by the Court from the list referred to in sub-rule (4) above together with a duly stamped voucher indicating that the fees prescribed for service have been paid.

If one or more of the proposed guardians signify his or their consent to act, the Court shall appoint one of them and intimate the fact of such appointment to the person appointed by registered post. If no one of the persons served signifies his consent to act, the Court shall proceed to serve simultaneously another selected two, if so many there be, of the persons named in the list referred to in sub-rule (4) above but no fresh application under sub-rule (4) shall be deemed necessary. The applicant shall within three days of intimation of unwillingness by the first set of proposed guardians, pay the prescribed fee for service and produce the necessary forms duly filled in.

(9) No person shall be appointed guardian without his consent.-No person shall without his consent, be appointed guardian for the suit. Whenever an application is made proposing the name of a person as guardian for the suit a notice in Form No. 11 A set forth in Appendix H hereto shall be served on the proposed guardian, unless the applicant himself be the proposed guardian or the proposed guardian consents.

(10) Court guardian.-When to be appointed-How he is to be placed in funds.- Where the Court finds no person fit and willing to act as guardian for the suit, the Court may appoint any of its officers or a pleader of the Court to be the guardian and may direct that the costs to be incurred by that officer in the performance of the duties as 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, and may give directions for the repayment or allowance of the costs as justice and the circumstances of the case may require.

(11) Funds for a guardian other than Court guardian to defend.-When a guardian for the suit of a minor defendant is appointed and it is made to appear to the Court that the guardian is not in possession of any or sufficient funds for the conduct of the suit on behalf of the defendant and that the defendant will be prejudiced in his defence thereby, the Court may, from time to time, order the plaintiff to advance monies to the guardian for purpose of his defence and all monies so advanced shall form part of the costs of the plaintiff in the suit. The order shall direct that the guardians, as and when directed, shall file in Court an account of the monies so received by him.”

Punjab.-In Order XXXII, in rule 3, for sub-rules (3) and (4), substitute the following sub-rules, namely:-

“(3) The plaintiff shall file with his plaint a list of relatives of the minor and other persons, with their address, who prima facie are most likely to be capable of acting as guardian for the suit for a minor defendant. The list shall constitute an application by the plaintiff under sub-rule (2) above.

(4) The Court may at any time after institution of the suit call upon the plaintiff to furnish such a list, and in default of compliance, may reject the plaint.

(5) Any application for the appointment of a guardian for the suit and any list furnished under this rule 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 each person proposed is a fit person to be so appointed.

(6) No 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 other natural guardian of the minor or, where there is no father 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:

Provided that the Court may, if it sees fit, issue notice to the minor also.”

[Vide Notification No. 95-G, dated 25th February, 1925 and Notification No. 566-G, dated 24th November, 1927.]

1[3A. Decree against minor to be set aside unless prejudice has been caused to his interests

(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 of 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.]

1. Ins. by Act No. 104 of 1976, (w.e.f. 1-2-1977).

4. Who may act as next friend or be 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 1[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, for 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 1[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.

1. Ins. by Act No. 104 of 1976, (w.e.f. 1-2-1977).

HIGH COURT AMENDMENTS

Allahabad.-(a) In Order XXXII, for rule 4, substitute the following rule, namely:-

“4. (1) Where a minor has a guardian appointed or declared by competent authority no person other than such guardian shall act as next friend, except by leave of the Court.

(2) Subject to the provisions of sub-rule (1) any person who is of sound mind and has attained majority may act as next friend of a minor, unless the interest of such person is adverse to that of the minor, or he is a defendant, or the Court for other reasons to be recorded considers him unfit to act.

Every next friend shall, except as otherwise provided by clause (5) of this rule, be entitled to be reimbursed from the estate of the minor any expenses incurred by him while acting for the minor.

(4) The Court may, in its discretion, for reasons to be recorded, award costs of the suit, or compensation under section 35A or section 95 against the next friend personally as if he were a plaintiff,

(5) Costs or compensation awarded under clause (4) shall not be recoverable by the guardian from the estate of the minor, unless the decree expressly directs that they shall be so recoverable.”

[Vide Notification No. 4080/35 (a)-3(7), dated 24th July, 1926.]

(b) after rule 4, insert the following rule, namely:-

“4A.(1) Where a minor has a guardian appointed by competent authority no person other than such guardian shall 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 appointed.

(2) Where there is no such guardian or where the Court considers that such guardian should not be appointed it shall appoint as guardian for the suit the natural guardian of the minor, if qualified, or where there is no such guardian the person in whose care the minor is, or any other suitable person who has notified the Court of his willingness to act or failing any such person, an officer of the Court.

Explanation.-An officer of the Court shall for the purposes of this sub-rule include a legal practitioner on the roll of the Court.”

Andhra Pradesh.-Same as in Madras.

Calcutta.-In Order XXXII, in rule 4, in sub-rule (4), for the words ‘Where there is no other person fit and willing to act as guardian for the suit”, substitute the words “Except as otherwise provided in this Order”.

[Vide Notification No. 8381-G, dated 13th June, 1927.]

Delhi.-Same as in Punjab.

Gauhati.-Same as in Calcutta.

Himachal Pradesh.-Same as in Punjab.

Karnataka.-In Order XXXII, omit rule 4. (w.e.f. 30-3-1967}

Kerala.-In Order XXXII, in rule 4,-

(i) in sub-rule (3), at the end, insert the following words, namely:-

“Whenever an application is made proposing the name of a person as a guardian for the result a notice in Form No. 11A set forth in Appendix H hereto shall be served on the proposed guardian, unless the applicant himself be the proposed guardian or the proposed guardian consents” (ii) in sub-rule (4), insert the following Explanation, namely:-

“Explanation.-An officer of the Court shall for the purpose of this sub-rule include a pleader of the Court.”

(iii) after sub-rule (4), insert the following sub-rule, namely:-

“(5) When a guardian for the suit of a minor defendant is appointed and it is made to appear to the Court that the guardian is not in possession of any or sufficient funds for the conduct of the suit on behalf of the defendant, and that the defendant will be prejudiced in his defence thereby, the Court may, from time to time, order the plaintiff to advance moneys to the guardian for the purpose of his defence and all moneys so advanced shall form part of the costs of the plaintiff in the suit. The order shall direct that the guardian, as and when directed, shall file in Court an account of the’ moneys so received by him.”

[Vide Notification No. 81-3312/58, dated 7th April, 1959.] ”

Madhya Pradesh.-In Order XXXII,-

(a) for rule 4, substitute the following rule, namely:-

“4. Who may act as next friend or 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 as 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 in either capacity.”

(b) after rule 4, insert the following rule, namely:-

“4A. Procedure for appointment of guardian for the suit.-{1} No person except the guardian appointed or declared by competent authority, shall, without his consent, be appointed guardian for the suit.

(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) Unless the Court is otherwise satisfied of the fact that the proposed guardian has no interest adverse to that of the minor in the matters in controversy in the suit and that he is a fit person to be so appointed, it shall require such application to be supported by an affidavit verifying the fact.

(4) No order shall be made on any application for the appointment as guardian for the suit of any person, other than a guardian of the minor appointed or declared by competent authority, except upon notice to the proposed guardian for the suit and to any guardian of the minor appointed or declared by competent authority, or, where there is no such guardian, the person in whose care the minor is, and after hearing, any objection that may be urged on a day to be specified in the notice. The Court may, in any case, if it thinks fit, issue notice to the minor also.

(5) Where, on or before the specified day, such guardian fails to appear and express his consent to act as guardian for the suit, or, where he is considered unfit, or disqualified under sub-rule (3), the Court may, in the absence of any other person fit and willing to act, appoint any of its ministerial officer, or a legal practitioner, to be guardian for the suit. If a legal practitioner is appointed guardian for the suit, the Court shall pass an order stating whether he is to conduct the case himself or engage another legal practitioner for the purpose.

(6) In any case in which there is a minor defendant, the Court may direct that a sufficient sum shall be deposited in Court by the plaintiff from which sum the expenses of the minor defendant in the suit including the expenses of a legal practitioner appointed guardian for the suit shall be paid. The costs so incurred by the plaintiff shall be adjusted in accordance with the final order passed in the suit in respect of costs.”

[Vide Notification No. 3409, dated 29th June, 1943.]

Madras.-In Order XXXII, omit rule 4.

Orissa.-Same as in Patna.

Patna.-In Order XXXII, in rule 4, in sub-rule (4), for the words “Where there is no other person fit and willing to act as guardian for the suit”, substitute the following words, namely:-

“Where the person whom the Court after hearing objections, if any, under sub-rule (4) of rule 3, proposes to appoint as guardian for the suit, fails, within, the time fixed in a notice to him to express his consent to be so appointed”.

Punjab.-In Order XXXII, in rule 4,~~

(a) after sub-rule (2), insert the following sub-rule, namely:-

“(2A) Where a minor defendant has no guardian appointed or declared by competent authority, the Court may, subject to the proviso to sub-rule (1), appoint as his guardian for the suit a relative of the minor.

If no person be available who is a relative of the minor the Court shall appoint one of the other defendants, if any and failing such other defendant, shall ordinarily proceed under sub-rule (4) of this rule to appoint one of its officers or a pleader.”

(b) [* * *]

(c) in sub-rule (4), after the words “any of its officers” insert the words “or a pleader” and for the words “such officer”, substitute the words “such persons”.

[Vide Notification No. 566-G, dated 24th November, 1927 as amended by Notification No. 209-R-XI-Y-3, dated 22nd July, 1936) and Notification No. 281-R-XI-Y-3, dated 19th September, 1936.]

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 by 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.

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:

1[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.]

1. Ins. by Act No. 104 of 1976, sec. 79 (w.e.f. 1-2-1977).

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.

1[(1A) An application for leave under sub-rule (1) shall be accompanied by an affidavit of the next friend of 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.

1. Ins. by Act No. 104 of 1976 (w.e.f. 1-2-1977).

HIGH COURT AMENDMENTS

Andhra Pradesh.-In Order XXXII, in rule 7, in sub-rule (2), at the end, insert the following proviso, namely:-

“Provided also that the Court may in its discretion dispense with such security and impose such other condition as it thinks fit, in case where it is satisfied that any money is needed for the maintenance, medical care or education of the minor and the guardian or next friend is unable to furnish security.”

[Vide Notification No. ROC 2756/56, B1, dated 5th December, 1959.]

Karnataka.-In Order XXXII, in rule 7, renumber sub-rule (2) as sub-rule (3) and insert the following sub-rule, namely:-

“(2) Where an application is made to the Court for leave to enter into an agreement or compromise or for withdrawal of a suit in pursuance of a compromise or for taking any other similar action on behalf of a minor or order person under disability, the affidavit in support of the application shall set out the manner in which the proposed compromise, agreement or other action is likely to affect the interests of the minor or other person under disability and the reason why such compromise, agreement or other action is expected to be for the benefit of the minor or other person under disability; where in such a case the minor or other person under disability is represented by counsel or pleader, the said counsel or pleader shall also file into Court along with the application a certificate to the effect that the agreement or compromise or action proposed is in his opinion for the benefit of the minor or other person under disability.

If the Court grants leave under sub-rule (1) of this rule, the decree or order of the Court shall expressly recite the grant of the leave sought from the Court in respect of the compromise, agreement or other action as aforesaid after consideration of the affidavit and the certificate mentioned above and shall also set out either in the body of the decree itself or in a schedule annexed thereto the terms of the compromise or agreement or the particulars of the other action.” (w.e.f. 30-3-1967)

Kerala.-In Order XXXII, in rule 7, insert sub-rule (1A) as in Madras.

[Vide Notification No. Bl-3312/58, dated 7th April, 1959.]

Madras.-In Order XXXII, in rule 7, insert the following sub-rule, namely:-

“(1A) Where an application is made to the Court for leave to enter into an agreement or compromise or for withdrawal of a suit in pursuance of a compromise or for taking any other action on behalf of a minor or other person under disability and such minor or other person under disability is represented by counsel or pleader, the counsel or pleader shall file in court with the application a certificate to the effect that the agreement or compromise or action proposed is, in his opinion, for the benefit of the minor or other person under disability. A decree or order for the compromise of a suit, appeal or matter to which a minor or other person under disability is a party shall recite the sanction of the Court thereto and shall set out the terms of the compromise as in Form No. 24 in Appendix D to this Schedule.”

[Vide Dis No 1647 of 1910.]

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 his 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.

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 that 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.

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 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.

11. Retirement, removal or death of guardian for the suit

(1) Where the guardian for the suit desire to retire or does not do his duty, or where there 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.

HIGH COURT AMENDMENT

Allahabad.-In Order XXXII, in rule 11,-

(i) in sub-rule (1), at the end, omit the words “and may make such order as to costs as it thinks fit”; (ii) in sub-rule (1), insert the following proviso, namely:-

“Provided that where the guardian desires to retire without reasonable cause the Court shall, while permitting him to retire, direct that he shall pay the cost to be incurred in the appointment of a fresh guardian.”

[Vide Notification No. 43/VII-d 29, dated 1st June, 1957.]

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 he 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 exparte 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.

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 therefore 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.

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, 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.

HIGH COURT AMENDMENTS

Andhra Pradesh.-Same as in Madras.

Karnataka.-In Order XXXII, after rule 14, insert the following rule, namely:-

“14A. When a minor defendant attains majority either he or the guardian appointed for him in the suit or the plaintiff may apply to the Court to declare the said defendant a major and to discharge the guardian and notice thereof shall be given to such among them as are not applicants. When the Court by order declares said defendant as major it shall by the same order discharge the guardian and thereafter the suit shall be proceeded with against the said defendant as a major.” (w.e.f. 30-3-1967)

Kerala.-In Order XXXII, after rule 14, insert rule 14A which is same as in Madras with the following modifications:-

(i) add the following as marginal note:-

“Appointment or discharge of a next friend or guardian for the son of a minor to be performed by Registrar”,

(ii) omit the following words:-

“shall be deemed to be a quasi-judicial act within the meaning of section 128 (2) (i) of the Code of Civil Procedure and”.

[Vide Notification No. Bl-3312/58, dated 7th April, 1959.]

Madras.-In Order XXXII, after rule 14, insert the following rule, namely:-

“14A. The appointment or discharge of a next friend or guardian for the suit of a minor in a matter pending before the High Court in its appellate jurisdiction, except in cases under appeal to the [Supreme Court], shall be deemed to be a quasi-judicial act within the meaning of section 128 (2) (i) of the Code of Civil Procedure and may be performed by the Registrar, provided that contested applications and applications presented out of time shall be posted before a Judge for disposal.”

[Vide Dis No. 1601 of 1914.]

1[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, or protecting their interest when suing or being sued.]

1. Subs. by Act 104 of 1976 for rule 15 (w.e.f. 1-2-1977)

1[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 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 against lunatics or other persons of unsound mind.]

1. Subs. by Act 104 of 1976 for rule 16 (w.e.f. 1-2-1977)

HIGH COURT AMENDMENTS

Andhra Pradesh.-Same as in Madras.

[Vide Notification No. ROC No. 6842/51-B 1, dated 9th August, 1957.]

Madras.-In Order XXXII, after rule 16, insert the following rule, namely:-

“17. In suits relating to the person or property of a minor or other person under the superintendence of the Court of Wards the Court in fixing the day for the defendant to appear and answer shall allow not less than two months “time between the date of summons and the date for appearance.”

[Vide Dis No. 644 of 1941].

[ORDER XXXIIA. SUITS RELATING TO MATTERS CONCERNING THE FAMILY

1[ORDER XXXIIA. SUITS RELATING TO MATTERS CONCERNING THE FAMILY

1. Order XXXIIA Ins. by Sec. 80 by Act No. 104 of 1976 (w.e.f. 1-2-1977).

1. Application of the Order

(1) The provision 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 proceeding 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.

2. Proceedings to be held in camera

In every suit or proceeding to which this Order applies, the proceeding may be held in camera if the Court so desires and shall be so held if either party so desires.

3. Duty of Court to make efforts for settlement

(1) In every suit or proceeding to which this Order applies, 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.

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 or this Order.

5. Duty to inquire into facts

In every suit or proceeding to which this Order applies, it shall be the duty of the Court to inquire, so far is reasonably can, into the facts alleged by the plaintiff and into any facts alleged by the defendant.

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 or theirs; or of such man or such wife,

(iii) any child or children being maintained by such man or 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 woman not having a 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 any other law for the time being in force.]

ORDER XXXIII. [SUITS BY INDIGENT PERSONS]

ORDER XXXIII. 1[SUITS BY INDIGENT PERSONS]

1. Subs, by Act No. 104 of 1976 for “Suits by Paupers” (w.e.f. 1-2-1977).

1. Suits may be instituted by in by indigent person.

Subject to the following provisions, any suit may be instituted by 1[an indigent person]

2[Explanation I—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 II—Where the plaintiff sued 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.]

1. Subs, by Act No. 104 of 1976 for “pauper” (w.e.f. 1-2-1977).

2. Subs, by Act No. 104 of 1976 for the former Explanation (w.e.f. 1-2-1977).

HIGH COURT AMENDMENTS

Bombay.-In Order XXXIII, in rule 1, for Explanation I, substitute the following Explanation, namely:-

“Explanation 1.-A person shall be deemed to be an indigent person if he is not possessed to means exceeding rupees one thousand in value or where he is possessed of means exceeding one thousand rupees in value, the same are not sufficient to enable him to pay fees prescribed by law for the plaint. For the purposes of this Explanation the means which a person is possessed of shall be deemed not to include property exempt from attachment in execution of a decree and the subject-matter of the suit.” (w.e.f. 1-10-1983)

Kerala.-In Order XXXIII, in rule 1,-

(i) for Explanations, substitute the following Explanations, namely:-

Explanation 1.-A person is a pauper when he is not possessed of sufficient means to enable him to pay the fee prescribed by law for the plaint in such suit,

Explanation 11,-Where the plaintiff sues in a representative capacity the question of pauperism shall be determined with reference to the means possessed by him in such capacity,” (w.e.f. 9-6-1959)

[Ed.-This amendment relates to rule 1 prior to its amendment made by the Central Act 104 of 1976, sec. 81 (w.e.f. 1-2-1977).]

1[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.]

1. Ins. by Act No. 104 of 1976, sec. 81 (w.e.f. 1-2-1977).

2. Contents of application

Every application for permission to sue as 1[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.

1. Subs, by Act No. 104 of 1976, sec. 81, for “pauper” (w.e.f. 1-2-1977).

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 authorized 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:

1[Provided that, where there are more plaintiffs than one, it shall be sufficient if the application is presented by one of the plaintiffs.]

1. Ins. by Act No. 104 of 1976 (w.e.f. 1-2-1977).

HIGH COURT AMENDMENTS

Allahabad.-In Order XXXIII, in rule 3, after the words “unless he is exempted from appearing in Court”, insert the words “or detained in prison”.

[Vide Notification No. 2457/35 (a)-1, dated 8th May, 1937.]

Andhra Pradesh.-Same as in Madras.

Karnataka.-Same as in Madras, (w.e.f. 30-3-1967)

Kerala.-In Order XXXIII, in rule 3, insert the following Explanation namely:-

“Explanation,-Where there are more applications than one presentation by one shall be deemed to be sufficient compliance with the provisions of the rule.” (w.e.f. 9-6-1959)

Madras.-In Order XXXIII, in rule 3, at the end, insert the following words, namely:-

“The High Court may by general or special order exempt any person or class of persons from the obligation to present in person an application for permission to sue as a pauper.”

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 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.

5. Rejection of application

The Court shall reject an application for permission to sue as 1[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 1[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 sue as 1[an indigent person]:

2[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,2 [or]

2[(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.]

1. Subs. by Act No. 104 of 1976, sec. 81, for “pauper” (w.e.f. 1-2-1977).

1. Ins. by Act No. 104 of 1976 (w.e.f. 1-2-1977).

HIGH COURT AMENDMENTS

Allahabad.-In Order XXXIII, in rule 5,-

(a) in clause (a), between the figure “3” and the word “, or” insert the words “and the applicant on being required by the Court to make any amendment within a time to be fixed by the Court, fails to do so”.

(b) at the end of the rule, insert the following Explanation, namely:-

“Explanation.-An application shall not be rejected under clause (d) merely on the ground that the proposed suit appears to be barred by any law.” (w.e.f. 15-4-1933)

Andhra Pradesh.-In Order XXXIII, in rule 5, for clause (d), substitute the following clause, namely:-

“(d) where the allegations in the application show that suit is barred by law or do not show a cause of action, or”.

Karnataka.-In Order XXXIII, in rule 5, in clause (a), between the figure “3” and the word “, or” add the words “and the applicant when required by the Court to rectify the defect within a time to be fixed by the Court fails to do so, or”, (w.e.f. 30-3-1967}

Kerala.-In Order XXXIII, in rule 5, after clause {d}, insert the following clause, namely:-

“(d1) Where the suit appears to be barred by any law, or”, (w.e.f. 9-6-1959)

Madras.-In Order XXXIII, in rule 5, for clause (d), substitute the following clauses, namely:-

“(d) where the allegations do not show a cause of action, or

(d1) where the suit appears to barred by any law, or” (w.e.f. 22-10-1940)

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 application may adduce in proof of his indigency, and for hearing any evidence which may be adduced in disproof thereof.

HIGH COURT AMENDMENTS

Andhra Pradesh.-In Order XXXIII, for rule 6, substitute the following rule, namely:- “6. Where the Court sees no reason to reject the application on the grounds stated in clauses (a) and {d) of rule 5, it shall fix a day (of which at least ten days’ clear notice shall be given to the opposite party and the Government Pleader) for receiving evidence from the parties including the Government Pleader with regard to the matters specified in clauses (b), (c) and (e) of rule (5).” (w.e.f. 4-3-1975)

Karnataka, Kerala and Madras:-In Order XXXIII, for rule 6, substitute the following rule, namely:-

“6. Notice of day for inquiring into the applicants right to sue as pauper.-Where the Court sees no reason to reject the application on any of the grounds stated in rule 5, it shall nevertheless fix a day of which at least ten days’ clear notice shall be given to the opposite party and to the G.P. for receiving such evidence as the applicant may adduce to prove that the application is not subject to any of the prohibitions in rule 5 and for hearing any evidence which may be adduced to the contrary.” (w.e.f. 9-6-1959).

7. 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 make a full record of their evidence.

1[(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 2[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 3[an indigent person].

1. Subs. by Act No. 104 of 1976 for “pauper” (w.e.f. 1-2-1977).

2. Subs. by Act No. 104 of 1976 for certain words (w.e.f. 1-2-1977).

3. Subs. by Act No. 104 of 1976 for “pauper” (w.e.f. 1-2-1977).

HIGH COURT AMENDMENTS

Andhra Pradesh.-Same as in Madras.

Karnataka,-Same as in Madras, (w.e.f. 30-3-1967)

Kerala.-In Order XXXIII, in rule 7, in sub-rule (3), at the end, substitute a comma for the full stop and insert the words “or direct that the application be filed as a plaint on the applicant paying the requisite Court-fee within thirty days or such reasonable time as the Court may fix.” (w.e.f. 9-6-1959)

Madras.-In Order XXXIII, in rule 7, after sub-rule (3), insert the following as sub-rule, namely:-

“(4) Where the application is for leave to sue in a representative capacity under Explanation (iii) to rule 1, or under sections 91, 92 or under Order 1, rule 8 the Court may, if it thinks fit for reasons to be recorded in writing, direct that the plaintiff shall give security for the payment of Court-fee.”

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 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 1[or fees payable for service of process] in respect of any petition, appointment of a pleader or other proceeding connected with the suit.

1. Ins. by Act No. 104 of 1976 (w.e.f. 1-2-1977).

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 1[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.

1. Subs. by Act No. 104 of 1976 for “pauper” (w.e.f. 1-2-1977).

HIGH COURT AMENDMENT

Orissa.-In Order XXVIII, in rule 9,-

(i) in clause (c), at the end, insert the word “or”;

(ii) after clause (c), inert the following clause, namely:-

“(d) if he has entered into an arrangement with any other person to finance the litigation.”

1[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).]

1. Ins. by Act No. 104 of 1976, sec. 81 (w.e.f. 1-2-1977).

HIGH COURT AMENDMENTS

Bombay.-In exercise of the powers conferred by sub-rule (2) of rule 9A of Order XXXIII, of the Code of Civil Procedure, 1908, the High Court of Judicature at Bombay with the previous approval of the Government of Maharashtra, makes the following rules for assignment of a pleader to an unrepresented indigent:-

1. Short title and commencement.-These rules may be called Assignment of a Pleader to an Unrepresented Indigent Person (Maharashtra) Rules, 1980.

2. Definitions.-In these rules, unless the context otherwise requires;

(a) ‘High Court’ means the High Court of Judicature at Bombay;

(b) ‘Pleader assigned’ means a Pleader assigned under these rules to represent an indigent person;

(c) ‘Panel’ means list of Pleaders prepared and maintained under these rules;

(d) ‘Constituting Authority’ means the authority empowered under these rules to constituting the panel.

3. The authority referred to in column No. 1 below shall continue panel of pleaders willing to appear for an unrepresented indigent person in civil proceedings in Courts referred to in column No. 2 against them:

Name of Constituting Authority Name of the Court for which panel to be constituted
1 Prothonotary and Senior Master High Court, Original Side, Bombay. High Court, Original Side, Bombay.
2 Registrar, High Court, Appellate Side, Bombay. High Court, Appellate Side, Bombay.
3 Special Officer, Nagpur. High Court Bench at Nagpur.
4 District Judge. Courts at District Headquarters.
5 Principal Judge, Bombay City Civil Court. Bombay City, Civil Court.
6 Chief Judge, Small Causes Court senior most Judge at the Station. Small Causes Court, Bombay for Courts outside District Headquarters.

Provided that the panel constituted by the senior most Judge outside the District Headquarters shall be subject to the previous approval of the District Judge.

4. The Constituting Authority shall prepare the panel in consultation with the President of the Bar Association, and if there be no Bar Association, in consultation with the pleaders practising in the Court for which panel is constituted.

5. Eligibility.-A pleader with a standing of not less than three years at the Bar shall be eligible for being taken on the panel.

6. Removal.-The Constituting Authority may strike off the name of a pleader from the panel when the pleader ceases to practice due to any reason or when he intimates his unwillingness in writing under rule 15 or when the Constituting Authority finds that the pleader after accepting a engagement neglects or refuses to discharge his duties. Before striking off a name for neglect or refusing to discharge duties properly, the Constituting Authority shall give an opportunity to the pleader to be heard.

7. Revision of Panel.-The Constituting Authority may add to the panel names of pleaders after following the procedure referred to in rule 4 as and when it deems necessary to do so.

8. When a pleader is to be assigned to an unrepresented indigent person such assignment shall be made from out of the panel by the Court concerned.

9. The pleader assigned shall not refuse assistance to the indigent person unless the Court is satisfied that he has good reasons for so refusing.

10. The Court may for sufficient reasons permit the pleader assigned, to withdraw from the proceeding and assign another to represent the indigent person. On such permission for withdrawal being granted, the pleader original assigned, shall hand over the papers relating to the proceeding to the pleader assigned subsequently.

11. The Court or Constituting Authority at any time if deemed proper may call for a report from the pleader assigned, regarding the progress of the suit or proceedings entrusted to him.

12. The pleader assigned shall take care that no notice is served, summons issued or petition presented without good cause in prosecution of the indigent person’s cause.

13. Whilst a person sues or defends as an indigent person, the pleader assigned shall not take or agree to take or seek to obtain from him or any other person any fee, pro/it or reward for the conduct of his useness in the Court:

Provided that notwithstanding anything herein contained, the Court of a Judge shall have power to award costs against the adverse party or out of the property recovered in the suit and to direct payment thereof to the pleader assigned.

14. The pleader assigned the case under these rules shall be paid the fees in various Courts at the rates mentioned below:

 (a) In all legal proceedings in the High Court at Bombay and Nagpur and in City Civil Court in Bombay. Rs. 50 per day subject to maximum of Rs. 150 in any one case.
(b) In all proceedings in Courts at District Headquarters and in Small Causes Courts in BombayPuna and Nagpur. Rs. 25 per day subject to a maximum of Rs. 100 in any one case.
(c) In all proceedings in Courts in Taluka. Rs. 15 per day subject to a maximum of Rs. 50 in any one case.

The expenditure on this account shall be met from budget grants sanctioned under budget head 214-Administration of Justice Legal Advisers and Counsel-M (i) and M (ii).

15. Intimation of unwillingness to continue on panel.-The pleader taken on the panel may if he so desire intimate in writing his unwillingness to continue to be on the panel and on receipt of such intimation, his name shall be deleted from the panel provided that Constituting Authority may request the pleader assigned to continue to represent the indigent person in the matters assigned. (By order of the Hon’ble the Chief Justice and Judges)

[Vide Mah. Gazette Pt. IV-Ka, dated 18-9-1980.]

Calcutta.-In exercise of the powers conferred by article 227 (2) (b) of the Constitution of India and by sub-rule (2) of rule 9A of Order XXXIII of the Code of Civil Procedure the High Court of Calcutta, with the approval of the Government of West Bengal has framed the following rules which are published for general information:

Rules under Order XXXIII, rule 9A (2) of the Code of Civil Procedure:

1. (a) For the purpose of selection of pleaders to be assigned under sub-rule (1) of rule 9A of Order XXXIII of the Code the District Judge in consultation with the senior most judicial officers of the outlying stations shall prepare and maintain a panel of pleaders for (a) the district headquarters, and (b) the outlying stations.

The District Judge in his discretion may also consult the President of the Civil Bar Association.

(b) The panel to be proposed under sub-rule (1) shall be in two parts. The first part of the panel shall contain the names of suitable advocates who offer themselves to appear for the undefended indigent persons without charging any fee and part two thereof shall have the names of such advocates as are willing to appear for such persons at State expense.

(c) An advocate who has been in practice for not less than five years in the Civil Courts and whose name has been entered on the rolls of Bar Counsel of West Bengal shall be eligible for being brought on the panel of pleaders.

(d) The District Judge shall revise the panel every two years in consultation with the senior most judicial officers of the outlying stations.

(e) The District Judge shall circulate the panel to all the Civil Courts in the District.

(f) No assignment shall be made to any pleader whose name does not appear in the panel.

2. In any case where it is decided to assign a pleader under Order XXXIII of the Code, every Court trying a cause (hereinafter called “the Court”) shall endeavour in the first instance to select a suitable advocate from that part of the panel which comprises the name of advocates willing to appear for undefended indigent persons without charging any fee. In case where it is not possible to assign a pleader, free of charges, the Court may assign a pleader at State expense.

3. The Court shall have power to terminate the assignment of a panel pleader for sufficient reasons to be recorded in writing and to make fresh assignment of another panel pleader in his place:

Provided that a pleader engaged by the Court shall retire from the trial if and when the indigent person engages lawyer at his own expense.

4.(1) A common register of the panel pleaders to be assigned for undefended indigent persons at State expense shall be maintained at each station showing: (a) name of the pleader; {b) date of assignment; (c) Court by which assigned; (d) No. of the case; (e) No. of days of work; (f) fees paid.

(2) A statement containing the particulars to be entered in the register shall be sent to the District Judge by each Court after conclusion of every trial in which a panel pleader is assigned at State expense.

(3) Every Court at a station shall, before selecting a panel pleader call for and consult the common register in order to ensure an even distribution of assignments amongst such panel pleaders.

5. The ordinary fees payable to a panel pleader assigned at State expense shall not be less than Rs. 50 and not more than Rs. 300 for the entire case at the discretion of the Presiding Officer of the Court.

6. Any vacancy in the panel due to death, incapacity, resignation or any other cause may be filled up by the District Judge in the manner provided in rule 1.

7. All panel pleaders engaged at State expense shall maintain in duplicate a monthly Register of Work in the form prescribed in the Schedule in loose sheets, one sheet being used for each separate case in which the pleader appears and the

initial of the Presiding Officer shall be taken daily in the appropriate column. After the disposal of each case in which he appears he shall obtain the signature of the Presiding Officer to the certificate of correctness on the sheet showing the work done in his Court. The duplicate of such sheet shall be preserved in the office of the District Judge for two years from the date of sanction of the bill.

8. As early possible after the delivery of the judgment of the cases the panel pleader shall submit to the Presiding Officer a bill in the prescribed form for the work done supported by the sheet of the Register of Work containing the certificate of the Presiding Officer.

9. The bill shall be checked with the Register of Work by the Chief Ministerial Officer, who shall certify its correctness, endorse the relevant sheet as checked; with his initial and obtain the signature of the Presiding Officer. The bill and Register of Work shall then be submitted to the District Judge for passing and after satisfying ,r himself as to the correctness thereof, he shall pass the bill for payment.

10. The District Judge shall be Controlling Officer for payment and audit of all fees payable to panel pleaders engaged at State expense in the Civil Courts in his District.

SCHEDULE

FORM I
(Rule 7)
Register of Work

Date No. and nature of case Actual daily duration of hearing Full or half day Serial No. of con­secutive days of hearing Initial of Presiding Officer
(1) (2) (3) (4) (5) (6)

Total number of days:
Certified correct
Signature of Presiding Officer
Date:

FORM II
(Rule 8)

Bill. of fee due to……….. in…. …….No………. ….of the Court of……………

Date Register of Works No. Full or half day Amount of fee charged Remarks
(1) (2) (3) (4) (5)

Total ………….Rupees………….Paise………….only

Verified with the Register
of Work as correct
Signature of Chief Ministerial

Passed for Rupees…………. (in words and figures)

Officer with date
Signature of Presiding Officer with date

District Judge

(Appellate Side : 15425, dated 22nd November, 1979)

Haryana.-The following rules have been framed for regulating the appointment of pleaders to represent indigent persons in civil suits:-

LEGAL AID TO INDIGENT PERSONS (PUNJAB, HARYANA AND
CHANDIGARH ADMINISTRATION) RULES, 1981

PART I

1. Short title and commencement-(1) The rules may be called the Legal Aid to the Indigent Persons {Punjab, Haryana and Chandigarh Administration) Rules, 1981

(2) These rules shall come into force from the date of their publication in the Official Gazette.

2. Definitions.-In these rules, unless the context otherwise requires,-

(a) ‘High Court’ means the High Court of Punjab and Haryana at Chandigarh;

(b) ‘Pleader’ includes any person whose name is entered on the rolls of the Bar Council of Punjab and Haryana maintained under the Advocates Act, 1961 and the rules framed thereunder;

(c) ‘List’ means the list of advocates prepared and maintained by District Judge separately for cash sub-division of the District under these rules, willing to appear for the undefined indigent persons in civil suits at State expense or free of charge.

(d) ‘Code’ means the Code of Civil Procedure, 1908, as amended from time to time.

PART II

3. Assignment of advocates for indigent persons.-(1) Where a person who is permitted by a Court to sue as an indigent person under sub-rule (3) of Rule 7 of Order XXXIII of the Code, is not presented by a pleader, the Presiding Officer of the Court shall, if the circumstances of the case so required, assign a pleader to him from the list.

(2) In any case where it is decided to assign a pleader under sub-rule (1), the Court shall endeavour in the first instance to select a suitable advocate from that part of the list which comprises the names of advocates, if any, willing to appear for undefended indigent persons without charging any fee.

PART III

4. Preparation of list.-(1) The District Judge shall prepare and maintain a list of 5 to 15 suitable advocates willing to appear for the undefended indigent persons at the state expense or without charging any fee separately for each sub-division of the district in relation to which he exercises jurisdiction, after consultation with the senior most Judicial Officer for the time being posted at the headquarters of each such sub-division and the president of the Bar Association of that place.

(2) The list to be prepared and maintained under sub-rule (1) shall be in two parts. The first part of the list shall contain the names of suitable advocates, who offer themselves to appear for the undefended indigent persons without charging any fee and part two thereof shall have the names of such advocates as are willing to appear for such persons at State expense and are selected for the purpose.

(3) An advocate with a standing of not less than five years at the Bar shall be eligible for being brought on the list under sub-rule (1). The District Judge shall so far as may be, persuade competent senior lawyers to enlist themselves for representing indigent persons without charging any fee.

(4) The District Judge shall revise the list in the month of December in each year.

(5) The District Judge, shall in the month of January in each year, communicate the names of the advocates on the list maintained for each sub-division of his District (s) to the High Court in the following form:- “j-

(1) Name of the advocate

(2) Date of birth

(3) Qualification: University degrees Distinctions earned in Law (if any)

(4) Date of enrolment at the Bar.

(5) Place of practice.

(6) Length of actual practice.

(7) General reputation and standing at the Bar.

(8) The Registrar shall cause the names on the list for each district to be entered separately in a Register.

(9) The District Judge or the High Court may strike off the name of any advocate from the list without assigning any reason.

PART IV

5. Facilities to advocates selected from the list.-

(1) Where an advocate is assigned to represent, indigent persons at State expense or otherwise, the Court shall allow a period of at least seven days to the advocate to prepare the brief and shall adjourn the hearing of the case for that purpose.

(2) The Court shall allow, free of cost, inspection of the records of the case by the advocate so assigned.

PART V

6. Scale of fees.-(1) The ordinary fee payable to an advocate assigned to represent an indigent person at State expense, shall not be less than Rs. 50 and not more than Rs. 300 for the entire case, at the discretion of the presiding officer of the Court.

(2) In special cases the District Judge may add any reasonable amount not exceeding Rs. 100 to the ordinary fee allowed by sub-rule (1) with the prior approval of the High Court.

(3) No fee shall be payable for the day on which the case is adjourned without any proceeding being taken by the Court, except at the first hearing of the case: Providing that if an advocate assigned to represent an indigent person is required to retire at any time after the engagement of an advocate by the indigent person at his own expense, he shall be entitled to get a fee of Rs. 50 as compensation.

7. Maintenance of Diary by Advocates engaged at State expense.-An advocate engaged to represent an indigent person in any Court subordinate to the High Court at State expense shall, at the conclusion of each day of hearing in the case, prepare and submit for counter signatures by the Presiding Officer of the Court a diary containing following details fully set out:-

Date The name and title of the case Name of the party represented Duration of hearing Work done Signature of the Presiding Officer Remarks

8. Payment of fees.-(1) The District Judge shall be the controlling Officer for the payment and audit of all fees due to advocates engaged to represent indigent persons in Courts subordinate to the High Court.

(2) The advocates listed shall submit their bills to the District Judge within one month of the disposal °f me case by the Court.

[Vide Notification No, 70/p3/CA./5/1908-R9A/Order/XXXIII, dated 7th May, 1981, published in Haryana Gazette, L.S. pp. 509-511, dated 19th May, 1981.]

Himachal Pradesh.-The following rules have been made for regulating the appointment of, Pleaders to represent indigent persons in civil suits, namely:-

LEGAL AID TO INDIGENT PERSONS (HIMACHAL PRADESH HIGH COURT) RULES, 1979.

PART I

1. Short title and commencement.-(1) These rules may be called the Legal Aid to the Indigent Persons (Himachal Pradesh High Court) Rules, 1979.

(2) These rules shall come into force with immediate effect.

2. Definitions.-In these rules, unless the context otherwise requires.-

(a) “High Court” means the High Court of Himachal Pradesh at Simla;

(b) “Pleader” includes any person whose name is entered on the rolls of the Bar Council of Himachal Pradesh maintained under the Advocates Act, 1961, and the Rules framed thereunder;

(c) “List” means the list of advocates prepared and maintained by the District Judge separately for each Sub-Division of the District under these rules, willing to appear for the undefended indigent persons in civil suits at State expense or free of charges;

(d) “Code” means the Code of Civil Procedure, 1908, as amended from time to time.

PART II

3. Assignment of advocate for indigent persons.-

(1) Where a person who is permitted by a Court to sue or a person who desires to plead a set off or counter claim in a suit filed against him as an indigent person under sub-rule (3) of Rule 7 and Rule 17, respectively, of Order XXXIII of the Code, is not represented by a pleader the Presiding Officer of the Court shall if the circumstances of the case so required, assign a pleader to him from the list

(2) In any case where it is decided to assign a pleader under sub-rule (1), the Court shall endeavour in the first instance to select a suitable advocate from the first part of the list mentioned in sub-rule (4) of Part III, failing which the persons from the Part II of the list will be appointed.

PART III

4. Preparation of list.-

(1) The District Judge shall prepare and maintain a list of 3 to 10 suitable advocates willing to appear for the undefended indigent persons at the State expense or without charging any fee separately for each Sub-Division of the District in relation to which he exercises jurisdiction, after consultation with the senior most judicial officer for the time being posted at the headquarters of each such sub-division and the President of the Bar Association of that place.

(2) The list to be prepared and maintained under sub-rule (1) shall be in two parts. The first part of the list shall contain the names of suitable advocates who offer themselves to appear for the undefended indigent person (s) without charging any fee and part two thereof shall have the names of such advocates as are willing to appear for such persons at State expense and are selected for the purpose.

(3) An advocate with a standing of not less than three years at Bar shall be eligible for being brought on the list under sub-rule (1). The District Judge shall, so far as may be, persuade competent senior lawyers to enlist themselves for representing indigent persons without charging any fee.

(4) The District Judge shall revise the list in the month of December in each year.

(5) The District Judge shall in the month of January in each year, communicate the names of the advocates on the list maintained for each Sub-Division of his District(s) to the High Court in the following form:-

(1) Name of the Advocate.

(2) Date of birth.

(3) Qualification: University Degrees: Distinctions earned in law (if any)

(4) Date of enrolment at the Bar.

(5) Length of actual practice.

(6) The Registrar shall cause the names on the list for each district to be entered separately in a Register.

(7) The District Judge or the High Court may strike off the name of any advocate from the list without assigning any reason..

PART IV

5. Facilities to advocates selected from the list.-(1) Where an advocate is assigned to represent an indigent person at State expense or otherwise, the Court shall allow a period of at least sev.en days to the advocates to prepare the brief and shall adjourn the hearing of the case for that purpose.

(2) The Court shall allow free of costs inspection of the records of the case by the advocate so assigned,

(3) The Court, where the deposition of witness is recorded by a stenographer during trial shall, supply copies of such depositions to the advocate so appointed free of cost.

PART V

6. Scale of fees.-The ordinary fee payable to an advocate assigned to represent an indigent person at State expense, shall not be less than Rs. 50 and not more than Rs. 300 for the entire case, at the discretion of the Presiding Officer of the Court.

(2) In special cases, the District Judge may add any reasonable amount to the ordinary fee allowed by sub-rule (1) with the prior concurrence of the High Court.

(3) If an advocate assigned to represent an indigent person is required to retire at any time after the engagement of an advocate by the indigent person at his own expense, he shall be entitled to get the minimum of the amount of fee fixed under sub-rule (1) above as compensation, or such other amount as the Presiding Officer in his discretion may allow subject to maximum fixed in sub-rule (1).

7. Maintenance of diary by advocates engaged at State expense.-An advocate engaged to represent an indigent person in any court subordinate to the High Court at State expense shall, at the conclusion of each day of hearing in the case, prepare and submit for counter-signatures by the Presiding Officer of the Court a diary containing following details fully set out:–

Date The name and title of the case Name of the party Duration of hearing Work done Signature of the Presiding Officer Remarks
(1) (2) (3) (4) (5) (6) (7)

 

8. Payment of fees.-(1) The District Judge shall be the controlling officer for the payment and audit oft all fees due to advocates engaged to represent indigent persons in courts subordinate to the High Court.

The fee shall be debitable to the major Head “214-Administration of Justice Civil and Session Courts payment of Professional and Special Services.”

(2) The advocates shall submit their bills to the District Judge within one month of the disposal of the case by the Court or such other extended time the District Judge may allow.

PART VI

9. Recovery of fee.-(1) Where an indigent person succeeds in the suit or counter-claim filed by him and is awarded costs, the Court shall direct that the pleader’s fee paid to advocate under Rule 3 of the sub-rule (1) of Part II shall be included in the memo of costs appended to the decree-sheet and that amount shall be ordered to be recovered from the said person and the said amount shall be the first charge on the subject-matter of the decree.

(2) The amount of fee recovered shall be deposited in the government account under the proper head of ‘Receipts’.

(3) The District Judge shall submit to the High Court quarterly statement regarding the amount so recovered under Rule 9 (1) with particulars of the case.

[vide Notification No. HHC Admn. 22(6)/78, dated 6th November, 1979, Published in Himachal Pradesh Gazette, Pt. III, dated 15th December, 1979.]

10. Costs where 1[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 1[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.

1. Subs. by Act No. 104 of 1976, sec. 81 for “pauper” (w.e.f. 1-2-1977).

11. Procedure where1[indigent person] fails

Where the plaintiff fails in the suit or the permission granted to him to sue as an 1[indigent person] has been withdrawn, or where the suit is withdrawn or dismissed,— (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 2[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 2[an indigent person].

1. Subs. by Act No. 104 of 1976 for “pauper” (w.e.f. 1-2-1977).

2. Ins. by Act No. 104 of 1976, sec. 81 (w.e.f. 1- 2-1977).

HIGH COURT AMENDMENTS

Andhra Pradesh.-In Order XXXIII, for rule 11,- (i) substitute as in Madras by renumbering it as sub-rule (1) thereof; (ii) after sub-rule (1) as so renumbered, insert the following sub-rule, namely:- “(2) Where the suit has been adjusted wholly or in part by any lawful agreement or compromise or where the defendant satisfies the plaintiff in respect of the whole or any part of the subject-matter of the suit, but no provision is made for the payment of Court-fee, the Court may direct either of or both the parties to pay the Court-fee or any proportionate part thereof as it thinks fit.” (w.e.f. 14-9-1961).

Karnataka.-In Order XXXIII, for rule 11, substitute the following rule, namely:- “11. (1) Where the plaintiff fials in the suit or is diapaupered or where the suit is withdrawn or where part of the claim is abandoned or the suit is dismissed because the summons for the defendant to appear and answer has not been served upon him in consequence of the plaintiff’s failure to pay the requisite charges for service or the suit is so dismissed 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-fee and in case of abandonment of part of the claim the proportionate court-fee which would have been payable by the plaintiff if he had not been premitted to sue as pauper.

(2) In cases where the plaintiff is dispaupered the Court may, instead of proceeding under sub-rule (1) order the plaintiff to pay the requisite court-fee within a time to be fixed by it and in default dismiss the suit and make and order for the payment of court-fee as in sub-rule (1).

(3) Where the Court finds that the suit has been instituted unreasonably or improperly by a next friend on behalf of a minor plaintiff on a cause of action which accrued during the minority of such plaintiff the Court may order the next frined to personally pay the court-fee.” {w.e.f. 30-3-1967)

Kerala.-Same as in Madras.

[Vide Notification No. Bl-3312/58, dated 7th April, 1959].

Madras.-In Order XXXIII, for rule 11, substitute the following rule, namely:

11. Procedure where pauper fails.-

Where the plaintiff fails in the suit or is dispaupered or where the suit is withdrawn or where part of the claim is abandoned or where the suit is dismissed-

(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-fees or postal charge (if any) chargeable for such service, 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-fee and in the case of abandonment of part of the claim the proportionate Court-fee, which would have been payable by the plaintiff if he had not been permitted to sue as a pauper. In case where the plaintiff is dispaupered the Court may, instead of proceeding under the previous paragraph order the plaintiff to pay the requisite Court-fee within a time to be fixed by it and to default dismiss the suit and make an order for the payment of Court-fee as in the previous paragraph.

Where the Court finds that the suit has been instituted unreasonably or improperly by a next friend on behalf of a minor plaintiff on a cause of action which accrued during the minority of such plaintiff, the Court may order the next friend to personally pay the Court-fee.”

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 amount of court-fees which would have been paid by the plaintiff if he had not been permitted to sue as 1[an indigent person] shall be recoverable by the State Government from the estate of the deceased plaintiff.

1. Subs. by Act No. 104 of 1976 for “pauper” (w.e.f. 1-2-1977).

12. State Government may apply for payment of court-fees.

The S tate 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.

HIGH COURT AMENDMENTS

Kerala.-Same as in Madras, {w.e.f. 9-6-1959)

Madras.-In Order XXXIII,- (a) renumber rule 12 as sub-rule (1) thereof; and (b) after sub-rule (1) as so renumbered, insert the following sub-rule, namely:- “(2) Notice to State Government before payment.-No order for payment out of money standing to the credit of any suit instituted in forma pauperism shall be made on the application of any party except after notice duly to the Government Pleader on behalf of the Government” (w.e.f. 10-8-1955)

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.

HIGH COURT AMENDMENT

Andhra Pradesh.-In Order XXXIII, after rule 13, insert the following rule, namely:- “13A. If any money is outstanding to the credit of a suit or appeal or other proceeding instituted, preferred or taken in forma pauperism no order for payment out of such money shall be made on application of any party except after due notice to the State Government”,(w.e.f. 15-2-1956)

1[14. Recovery of amount of court-fees.

Where an order is made under rule 10, rule 11 or rule 11 A, 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 of land revenue.

1. Subs. by Act 24 of 1942, sec. 2 for rule 14.

15. Refusal to allow applicant to sue as indigent person to bar subsequent application of like nature

An order refusing to allow the applicant top sue as 1[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;

2[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 3[an indigent person.]

1. Subs. by Act No. 104 of 1976 for “pauper” (w.e.f. 1-2-1977).

2. Subs. by Act No. 104 of 1976 for certain words (w.e.f. 1-2- 1977).

3. Subs. by Act No. 104 of 1976 for “pauper” (w.e.f. 1-2-1977).

HIGH COURT AMENDMENT

Rajasthan.-In Order XXXIII,- (a) renumber rule 15 as sub-rule (1) thereof; and (b) after sub-rule (1) as so renumbered, insert the following sub-rule, namely:- “(2) Nothing in sub-rule (1) shall prevent the 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 a time to be fixed by the Court; and upon such payment the suit shall be deemed to have been instituted on the date on which the application was presented.”

(w.e.f. 14-8-1954)

1[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 2[****] rule 15 with in 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.]

1. Ins. by Act No. 104 of 1976 (w.e.f. 1-2-1977).

2. Omitted by Act No.19 of 1988.

16. Costs

The costs of an application for permission to sue as 1[an indigent person] and of an inquiry into indigency shall be costs in the suit.

1. Subs, by Act No. 104 of 1976 for “pauper” (w.e.f. 1-2-1977).

HIGH COURT AMENDMENT

Andhra Pradesh.-In Order XXXIII, after rule 16, insert the following rules, namely:-

17. In every case, where a person is suing as a pauper, the counsel appearing for him shall file along with his vakalatnama a certificate stating the fee, if any, he has actually received and/or as stipulated to receive from the pauper or on his behalf in the suit and if, upon such a certificate the Court is satisfied that his means are such that he ought not to continue to sue as a pauper or that he is being financed by a third party, it shall be open to the Court to dispauper such a person.

18. Where the pauper is unable to engage a counsel, the Court may assign an advocate or pleader to assist him.

19. It shall be the duty of the Advocate or Pleader who may be assigned by the Court to assist a pauper to see that notices are served, summonses issued or petitions presented only on good and sufficient grounds and he shall also report to the Court every six months the progress of the suit.

20. After a person has been granted leave to sue as a pauper, no person shall take, except in pursuance of an agreement as certified to Court under rule 17 or agree to take or seek to obtain from him, any fee, profit or reward for the conduct of his business in the Court: Provided that, notwithstanding anything herein contained, the Court shall have power to award costs against the adverse party or out of the property recovered in the suit and to direct the payment thereof to the Advocate or Pleader representing the pauper.

21. The word ‘suit’ in these rules includes ‘appeal’.”

[Vide Notification No. ROC No. 1186/56-B1, dated 9th April, 1958.]

1[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.

1. Ins. by Act No. 104 of 1976, sec. 81 (w.e.f. 1-2-1977).

HIGH COURT AMENDMENT

Bombay.-In Order XXXIII, for rule 17, substitute the following rule, namely:-

“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, and if he is required to issue a third party notice, the third party notice shall also be deemed to be a plaint for the purpose of this rule.” (w.e.f. 1-10-1983)

1[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 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.]

1. Ins. by Act 104 of 1976, sec. 81 (w.e.f. 1-2-1977).

HIGH COURT AMENDMENT

Bombay.-In Order XXXIII, after rule 18, insert the following rule, namely:- “19. An indigent not to compromise suit without leave of Court.-No cause, suit or matter commenced or carried on by an indigent plaintiff or defendant shall be compromised on any account whatsoever leave first had and obtained from the Judge in Chambers or the Court.” (w.e.f. 1-10-1983)

ORDER XXXIV. SUITS RELATING TO MORTGAGES OF IMMOVABLE PROPERTY

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 mortgage need not be joined in a suit to redeem a subsequent mortgage.

1[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.]

1. Subs. by Act 21 of 1929, sec. 4, for rule 2.

HIGH COURT AMENDMENTS

Orissa.-Same as in Patna.

Patna.-In Order XXXIV, in rule 2, sub-rule (2), after the words “The Court may”, insert the words “of its own motion or”:

[Vide Notification No. 1-R, dated 7th January, 1936.]

1[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 necesssary—

(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 his 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.]

1. Subs. by Act 21 of 1929, sec. 4, for rule 3.

1[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 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 all 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 for foreclosure in which sale is ordered, subsequent mortgagees 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 circumstances of the case may require.]

HIGH COURT AMENDMENTS

Allahabad.- In Order XXXIV, in rule 4, in sub-rule (2), after the words “The Court may”, insert the words “of its own motion, or”.

[Vide Notification No. 4084/35(a)-3(7), dated 24th July, 1926.].

Calcutta.- In Order XXXIV, in rule 4, renumber sub-rules (3) and (4) as sub-rules (4) and (5) respectively and insert the following sub-rule, namely.-

“(3) The Court may in its discretion direct in the decree for sale that if the proceeds of the sale are not sufficient to pay the mortgage debet, the mortgagor shall pay the balance personally.”

1. Subs. by Act 21 of 1929, sec. 4, for rule 4.

1[5. Final decree in suit for sale

(1) Where, on or before the day fixed or at a time before the confirmation of a sale made in pursuance of a final decree pass under sub-rule (3) of this rule, the defendant makes payment into Court of amounts due from him under sub-rule (1) of rule 4, the Court shall, on applicatl made by the defendant in this behalf, pass final or, if such decree has passed, order—

(a) ordering the plaintiff to deliver up the documents referred to in the prelimina decree, and if necessary—

(b) ordering him to transfer the mortgaged property as directed in the said decre 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 c a decree passed under sub-rule (3) of this rule, the Court shall not pass an order und< sub-rule (1) of this rule, unless the defendant in addition to the amount mentione in sub-rule (1), deposits in Court for payment to the purchaser a sum equal to fiv 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 fo repayment of the amount of the purchase-money paid into Court by him, togethe with a sum equal to five per cent thereof.

(3) Where payment in accordance with sub-rule (1) has not been made, the Cour shall, on application made by the plaintiff in this behalf, pass a final decree directinj that the mortgaged property or a sufficient part thereof be sold, and that the proceed: of the sale be dealt with in the manner provided in sub-rule (1) of rule 4.]

HIGH COURT AMENDMENTS

Andhra Pradesh.-Same as in Madras.

Kerala.-Same as in Madras, (w.e.f. 9-6-1959)

Madras.-In Order XXXIV, in rule 5, in sub-rule (3), after the words “plaintiff in this behalf”, insert the words “and after notice to all parries”.

[Vide ROC No. 4955-B-1 of 1930.]

1. Subs. by Act 21 of 1929, sec. 4, for rule 6.

6. Recovery of balance due on mortgage in suit for sale.

Where the ne proceeds of any sale held under 1[rule 5] are found insufficient to pay the amouni due to the plaintiff, the Court, on application by him may, if the balance is legall> recoverable from the defendant otherwise than out of the property sold, pass a decree for such balance.

1. Subs, by Act No. 104 of 1976 for “the last preceding rule” (w.e.f. 1-2-1977).

1[7. Preliminary decree is 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 the date, in respect of his mortgage-security, together with interest thereon; or

(b) declaring the amount so 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 and 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 incumbrances created by the defendant or any person claiming under him where the defendant claims by derived title, by those under whom he 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 of sale, as the case may be, extend due in respect of subsequent costs, charges, expenses and interest.

1. Subs. by Act 21 of 1929, sec. 4, for rule 7.

8. Final decree in redemption suit

(1) Where, 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 under by the plaintiff in this behalf, pass a final decree or, if such decree has been passed, an order—

(a) ordering the defendant to deliver 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 is sub-rule (1), deposits in the Court for payment to the purchaser a sum equal to five per cent, of the amount of the purchase-money paid into 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 a 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.

3[8A. Recovery of balance due on mortgage in suit for redemption

Where the net proceeds of any sale held under 1[rule 8] are found insufficient to pay the amount due to the defendant, the Court,2[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.]

1. Subs. by Act No. 104 of 1976 for “the last proceeding rule” (w.e.f. 1-2-1977).

2. Subs. by Act No. 104 of 1976 for “on application by him” (w.e.f. 1-2-1977).

3. Ins. by Act 21 of 1929, sec. 5.

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 required, to re-transfer the property and to pay to the plaintiff and amount which may be found due to him; and the plaintiff shall, if necessary, be put in possession of the mortgaged property.

2[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 exepenses 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:

1[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 substantially 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.]

1. Ins. by Act No. 104 of 1976 (w.e.f. 1-2-1977).

2. Subs. by Act 21 of 1929, sec. 6, for rule 10.

1[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 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.]

1. Ins. by Act No. 104 of 1976 (w.e.f. 1-2-1977).

HIGH COURT AMENDMENT

Bombay.-In Order XXXIV, for rule 10A, substitute the following rule, namely:-

“10A. Costs of mortgaged subsequent to decree.-In mortgage suit where under the mortgage the possession of the mortgaged property is with the mortgagee, the mortgagor may tender or deposit, before or at the time of the institution of the suit, or during the pendency of the same, the sum due on the mortgage. The tender by the mortgagor must be in writing. Notice of any such deposit shall be given by the Court to mortgagee. If the sum so tendered or deposited is in the opinion, of the Court, substantially sufficient to satisfy the mortgage, the Court shall direct the mortgagee to pay to the mortgagor, mesne profits as may be determined from the date of such tender or notice of deposit till the actual delivery of possession by the mortgagee to the mortgagor.”

[Vide Notification No. P.O. 102/77, dated 31st December, 1987.]

1[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 such rate at the Court deems reasonable, and

(ii) [Sub-clause (ii) Omitted by Act 66 of 1956, sec. 14 (w.e.f. 1-1-1957)].

(iii) on the amount adjudged due to the mortgagee for costs, charges and expenses properly incurred by the mortgagee in respect of the mortgagee-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 the such rate as the Court deems reasonable.]

1. Subs. by Act 21 of 1929, sec. 6, for rule 11.

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.

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 of all interest due on account of the mortgage is 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, then 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).

14. Suit for sale necessary for bringing mortgaged property to sale.

(1) Where a mortgagee 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 1 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.

HIGH COURT AMENDMENTS

Bombay.-In Order XXXIV, after rule 14, insert the following rule, namely:-

“14A. Special provisions regarding a composite decree combining in itself a preliminary as well as a final decree.-(1) Notwithstanding anything hereinbefore contained, where the sale of any mortgaged property is decreed under any composite decree which combines in itself a preliminary as well as a final decree as per compromise between the parties or as required or permissible under any special law or under an order, award or adjudication which is deemed to be a decree of a Civil Court, or which is required to be executed as a decree or as if it is a decree of a Civil Court, and the judgment-debtor (mortgagor), before the day fixed in that behalf or at any time before the confirmation of the sale made in pursuance of such decree, order, award or adjudication, makes payment into Court of all amounts due from him to the decree-holder (mortgagee) on the date under the said decree, order, award or adjudication including all subsequent costs, charges, expenses and interest, and also deposits in Court for payment the purchaser a sum equal to five per cent, of the amount of the purchase money paid into Court by the purchaser, the Court shall, on application made by the judgment-debtor (mortgagor) in this behalf, set aside the sale and mark the decree, order, award or adjudication as satisfied, and pass in order-

(a) ordering the decree-holder (mortgagee) to deliver up to the judgment-debtor (mortgagor) or his nominee, all documents in the possession or power relating to the mortgaged property and if necessary.

(b) ordering him to retransfer to mortgaged property to the judgment-debtor (mortgagor) or his nominee at his cost free from the mortgage and from all incumbrances created by the decree-holder (mortgagee), or any person claiming under him, or where the decree-holder (mortgagee) claims by derived title, by those under whom he claims, and also if necessary.

(c) ordering him to put the judgment-debtor (mortgagor) or his nominee in possession of the property.

(2) Where such deposit has been made, 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) The Court may, upon good cause shown and upon terms to be fixed by the Court, from time to time at any time before the sale is confirmed extend the time fixed for the payment of the amount due under the decree, under, award of adjudication, including all subsequent costs, charges, expenses and interest.” (w.e.f. 1-10-1983)

Kerala.-In Order XXXIV, in rule 14, omit sub-rule (2).

[Vide Notification No. Bl-3312/58, dated 7th April, 1959.]

3[15. Mortgages by the deposit of title deeds and charges

1[(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[(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.]

1. Renumbered as sub-rule (1) of rule 15 by Act No. 104 of 1976, sec. 82 w.e.f. 1-2-1977).

2. Ins. by Act No. 104 of 1976 (w.e.f. 1-2-1977).

3. Subs. by Act 21 of 1929, sec. 7, for rule 15.

HIGH COURT AMENDMENTS

Allahabad.-In Order XXXIV.-

(a) renumber rule 15 as sub-rule (1) thereof, and

(b) after sub-rule (1), as so renumbered, insert the following sub-rule, namely:-

“(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 very decree.” (w.e.f. 17-1-1953)

Kerala.-For Order XXXIV, substitute the following Order, namely:-

“ORDER. XXXIV SUITS RELATING TO MORTGAGES OF IMMOVABLE PROPERTY

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.

2. Decree in foreclosure suit.-(1) In a suit for foreclosure, if the plaintiff succeeds, the Court shall pass a decree-

(a) declaring the amount due to the plaintiff on date of such decree for-

(i) principal and interest on the mortgage;

(ii) the costs of the 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; and

(b) directing-

(i) that, if the defendant pays into Court the amount so declared due with future interest and subsequent costs as are mentioned in Rule 7 on a day within six months from the date of the decree to be fixed by the Court, the plaintiff shall deliver up to the defendant, or to such persons as he appoints, all documents f, in his possession or power relating to the mortgaged property, and shall, if so required, re-transfer the property to the defendant at the cost of the defendant free from the mortgage and from all encumbrances 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; but

(ii) that, if such payment is not made on or before the day fixed by the Court, the defendant and-all persons claiming through or under him shall be debarred from all rights to redeem the property; and also if necessary the defendant shall put the plaintiff in possession of the property.

(2) Where, in a suit for foreclosure, subsequent mortgagees or persons deriving title from, or surrogated to the right of, any such mortgagees are joined as parties, the Court shall adjudicate upon the respective rights and liabilities of all 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.

(3) On the expiry of the date fixed for payment of the amount declared due to the mortgagee, 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.

3. Decree in suit for sale.~(i) In a suit for sale, if the plaintiff succeeds, the Court shall pass a decree to the effect mentioned in clauses (a) and (b) (i) of rule 2 (1) and also directing that, in default of the defendant paying as therein mentioned, the mortgaged property or a sufficient part thereof be sold, and that the proceeds of the sale (after deducting therefrom the expenses of the sale) be applied in payment of what is declared due to the plaintiff as aforesaid, together with subsequent interest and subsequent costs, and that the balance,/if any be paid to the defendant or other persons entitled to receive the same; and that, in case the proceeds of such sale be insufficient to pay the amount due to the plaintiff, the balance, if legally recoverable from the defendant otherwise than out of the property sold be paid by the defendant personally.

(ii) In a suit for foreclosure, if the plaintiff succeeds and the mortgage is an anomalous mortgage, the Court may, at the instance of the plaintiff or of any other person interested either in the mortgage money or in 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.

(iii) Where in a suit for sale or a suit for foreclosure in which sale is ordered, subsequent mortgagees or persons deriving title from or subrogated to the rights of, any such mortgagees are joined as parties the Court shall adjudicate upon the respective rights and liabilities of all the parties to the suit in the manner and form set forth in Form No. 9, From 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.

2. Decree in foreclosure suit.-(1) In a suit for foreclosure, if the plaintiff succeeds, the Court shall pass a decree-

(a) declaring the amount due to the plaintiff on date of such decree for-

(i) principal and interest on the mortgage;

(ii) the costs of the 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; and

(b) directing-

(i) that, if the defendant pays into Court the amount so declared due with future interest and subsequent costs as are mentioned in Rule 7 on a day within six months from the date of the decree to be fixed by the Court, the plaintiff shall deliver up to the defendant, or to such persons as he 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 the cost of the defendant free from the mortgage and from all encumbrances 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; but

(ii) that, if such payment is not made on or before the day fixed by the Court, the defendant and .-all persons claiming through or under him shall be debarred from all rights to redeem the property; and also if necessary the defendant shall put the plaintiff in possession of the property.

(2) Where, in a suit for foreclosure, subsequent mortgagees or persons deriving title from, or surrogated to the right of, any such mortgagees are joined as parties, the Court shall adjudicate upon the respective rights and liabilities of all 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.

(3) On the expiry of the date fixed for payment of the amount declared due to the mortgagee, 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.

3. Decree in suit for sale.-(i) In a suit for sale, if the plaintiff succeeds, the Court shall pass a decree to the effect mentioned in clauses (a) and (b) (i) of rule 2 (1) and also directing that, in default of the defendant paying as therein mentioned, the mortgaged property or a sufficient part thereof be sold, and that the proceeds of the sale (after deducting therefrom the expenses of the sale) be applied in payment of what is declared due to the plaintiff as aforesaid, together with subsequent interest and subsequent costs, and that the balance, any be paid to the defendant or other persons entitled to receive the same; and that, in case the proceeds of such sale be insufficient to pay the amount due to the plaintiff, the balance, if legally recoverable from the defendant otherwise than out of the property sold be paid by the defendant personally.

(ii) In a suit for foreclosure, if the plaintiff succeeds and the mortgage is an anomalous mortgage, the Court may, at the instance of the plaintiff or of any other person interested either in the mortgage money or in 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.

(iii) Where in a suit for sale or a suit for foreclosure in which sale is ordered, subsequent mortgagees or persons deriving title from or subrogated to the rights of, any such mortgagees are joined as parties the Court shall adjudicate upon the respective rights and liabilities of all the parties to the suit in the manner and form set forth in Form No. 9, From 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.

4. Decree in suit for redemption.-In a suit for redemption, if the plaintiff succeeds, the Court shall pass decree-

(a) declaring the amount due to the defendant at the date of such decree for-

(i) principal and interest on the mortgage;

(ii) the costs of the 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; and

(b) directing-

(i) that, if the plaintiff pays into Court the amount so declared due with subsequent interest and costs as are mentioned in Rule 7, on a day within six months of the decree to be fixed by the Court, the defendants shall deliver up to the plaintiff, or to such person as he appoints, all documents in his possession or power relating to the mortgaged property, and shall if so required, re-transfer 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, or, where the defendant claims by derived title, by those under whom he claims, and shall, if necessary, put the plaintiff in possession of the property; and

(ii) that, if such payment is not made on or before the date so fixed, the plaintiff shall in the case of a mortgage by conditional sale or an anomalous mortgage the terms of which provide for foreclosure only and not for sale, be debarred from all rights to redeem the property and also, if necessary, put the defendant in possession of the mortgaged property; and that if desired by the defendant in the suit itself, in the case of any mortgage other than an usufructuary mortgage, a mortgage by conditional sale or such an anomalous mortgage as aforesaid the mortgaged property or a sufficient portion thereof be sold and the proceeds of the sale (after deducting therefrom the expenses of the sale) be 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 and that, in case the net proceeds of such sale be insufficient to pay the amount due to the defendant, the balance be paid by the plaintiff personally if the balance is legally recoverable from the plaintiff otherwise than out of the property sold.

5. Date of payment.-The Court may, upon good cause shown and upon such terms, if any, as it thinks fit, postpone the date fixed for payment under this Order from time to time.

6. Decree where nothing is found due or where mortgage has been overpaid.- Notwithstanding anything herein before contained, if it appears in a redemption suit that nothing is due to the defendant or that he has been overpaid, the Court shall pass a decree directing the defendant if so required, 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.

7. 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 the conduct of the mortgagee has been such as to disentitle him to costs, 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 decree for foreclosure, sale or redemption up to the time of actual payment.

8. 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.

9. Application of proceeds.-

(i) Such proceeds shall be brought into Court and applies 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 costs, properly incurred in connection therewith;

Thirdly, in payment of 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 the 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, then to such persons according to their respective interests therein or upon their joint receipt.

(ii) Nothing in this rule or in Rule 8 shall be deemed to affect the powers conferred by section 57 of the Transfer of Property Act, 1882.

10. Suit for sale necessary for bringing mortgaged property to sale.-Where a mortgagee 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.

11. Mortgages by the deposit of title-deeds and charges.-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.”

[Vide Kerala Gazette, Pt. III, No. 46, dated 20th November, 1990.]

ORDER XXXV. INTERPLEADER

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.

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 the he can be entitled to any order in the suit.

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.

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 admissions 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.

5. Agents and tenants may not institute interpleader suits

Nothing in the Order shall be deemed to enable agents to sue their principles, or tenants to sue their landlords, for the purpose of compelling them to interplead with any person 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.

6. Charge for plaintiffs 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

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.

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.

3. Agreement to be filed and registered as suit

(1) The ag re cement if framed in accordance with the rules hereinbefore contained, may be filed 1[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) 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 3[the application was presented.]

1. Ins. by Act No. of 104 of 1976 (w.e.f. 1-2-1977).

2. Subs, by Act No. 104 of 1976 for “The agreement” (w.e.f. 1-2-1977).

3. Subs, by Act No. 104 of 1976 “it was presented” (w.e.f. 1-2-1977).

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.

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 the 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:

1[6. No appeal from a decree passed under rule 5

No appeal shall lie from a decree passed under rule 5.]

1. Ins. by Act No. of 104 of 1976 (w.e.f. 1-2-1977).

ORDER XXXVII. SUMMARY PROCEDURE

ORDER XXXVII. SUMMARY PROCEDURE 1[* * *]

1. The Words “On Negotiable Instruments” omitted by Act 104 of 1976, sec. 84 (w.e.f. 1-2-1977).

1[1. Courts and classes of suits to which the Order is to apply

(1) This Order shall apply to the following Court, 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.]

1. Subs. by Act No. 104 of 1976 for rule 1 (w.e.f. 1-2-1977).

HIGH COURT AMENDMENTS

Bombay.-(1) In Order XXXVII, in rule 1, for sub-rule (1), substitute the following sub-rule, namely:-

“1. This order shall apply to the following Courts, namely:-

(a) High Courts, City Civil Courts and Courts of Small Causes; and

(b) such other Courts as may be specifically empowered in this behalf by the High Court from time to time by a Notification in the Official Gazette: 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 or suits as it deems proper and may also from time to time, as the circumstances of the use 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.” (w.e.f. 1-10-1983)

Kerala.-Omit Order XXXVII. (w.e.f. 9-6-1959)

1[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;

(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, 1907).”

(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 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.]

1. Subs. by Act No. 104 of 1976 for rule 2 (w.e.f. 1-2-1977).

1[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 order, all summonses, notices and other judicial processes required to be served on the defendant, shall 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 plaintiffs pleader, or, if the plaintiff sues in person, to the plaintiff himself, either by notice delivered at or sent by pre-said letter directed to the address of the plaintiffs 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 for 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 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 with 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, execute the delay of the defendant in entering an appearance or in applying for leave to defend the suit.]

1. Subs, by Act No. 104 of 1976 for rule 3 (w.e.f. 1-2-1977).

HIGH COURT AMENDMENTS

Delhi.-Same as in Punjab.

Himachal Pradesh.-Same as in Punjab.

Punjab.-In Order XXXVII, in rule 3, for sub-rule (3), substitute (he following sub-rule, namely:-

“(3) The provisions of section 5 of the Indian Limitation Act, 1908, shall apply to applications under sub-section (1).”

4. Power to set aside decree

After decree for 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.

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.

6. Recovery of cost of noting non-acceptance of dishonoured bill or note-

The holder of every dishonoured bill of exchange or promissory note shall have the same remedies for the recovery of the expenses incurred in noting the same for non-acceptance or non-payment otherwise, by reason of such dishonour, as he has under this Order for the recovery of the amount of such bill or note.

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.

HIGH COURT AMENDMENT

Karnataka.-After Order XXXVII, insert the following Order, namely:-

“ORDER XXXVIIA
INTERLOCUTORY APPLICATIONS

Applications

1. An interlocutory application means an application to the Court in any suit, appeal or proceeding already instituted in such Court other than an application for execution of a decree or order or for review of judgment or for leave to appeal.

2. Except where otherwise prescribed by rules or otherwise provided by any law for the time being in force, an interlocutory application shall state only the order prayed for and shall not contain any statement of facts or argumentative matter. Every application in contravention of this rule shall be returned for amendment or rejected.

3. Every interlocutory application shall be supported by an affidavit. Where, however, the facts on which the application is based appear from the records in Court or relate to any act or conduct of the applicant’s pleader himself, the Court may permit memorandum of facts signed by the applicant’s pleader to be filed instead of an affidavit.

4. Any fact required to be proved upon an interlocutory proceeding shall, unless otherwise prescribed by rule or ordered by Court, be proved by affidavit, but the Judge may in any case direct evidence to be given orally, and thereupon the evidence shall be recorded and exhibits marked in the same manner as in a suit.” (w.e.f. 30-3-1967)

ORDER XXXVIII. ARREST AND ATTACHMENT BEFORE JUDGMENT

Arrest before judgment

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 his property or any part thereof, 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 enstrusted 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.

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 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 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.

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.

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.

HIGH COURT AMENDMENT

Kerala.-In Order XXXVIII,-

(a) re-number rule 4 as sub-rule (1) thereof; and

(b) after sub-rule (1) as so renumbered, insert the following sub-rule, namely:-

“(2) The provisions of Order XXI, rule 39 as to allowances payable for the subsistence of judgment-debtor shall apply to all defendants arrested under this Order.”

[Vide Notification No. Bl-3312/58, dated 9th June, 1959.]

Attachment before judgment

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 j urisdiction 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.

1[(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.]

1. Ins. by Act No. 104 of 1976, sec. 85 (w.e.f. 1-2-1977).

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 of 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.

HIGH COURT AMENDMENT

Bombay.-In Order XXXVIII, in rule 6, in sub-rule (2), after the words “the required security”, insert the words “or gives an undertaking to the Court to do or not to do a thing”, (w.e.f. 1-10-1983)

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.

1[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 adjudicated of claims to property attached in execution of a decree for the payment of money.]

1. Subs. by Act No. 104 of 1976 for rule 8 (w.e.f. 1-2-1977).

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.

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.

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 and a 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.

1[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.]

1. Ins. by Act No. 104 of 1976 (w.e.f. 1-2-1977).

HIGH COURT AMENDMENT

Madras.-In Order XXXIX, after Rule 11A, insert the following rule, namely:-

“11B. Order of attachment to be communicated to the registering officer.-Any order of attachment passed under rule 5 or 6 of this order and any order raising the attachment passed under rule 9 of this order shall be communicated to the registering officer within the local limits of whose jurisdictions the whole or any part of the immovable property completed in such order, is situate.”

[Vide Tamil Nadu Government Gazette, Pt. III, Sec. 2, dated 15th July, 1987.]

12. Agricultural produce not attachable before judgment

Nothing in this Order shall be deemed to authorize 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.

1[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 order for the attachment of immovable property.]

1. Ins. by Act 1 of 1926, sec. 4.

HIGH COURT AMENDMENT

Kerala.-In Order XXXVIII, in rule 13, for the words “Court of Small Causes”, substitute the words “Court exercising Small Cause jurisdiction”.

[Vide Notification No, Bl-3312/58, dated 9th June, 1959.]

ORDER XXXIX. TEMPORARY INJUNCTIONS AND INTERLOCUTORY ORDERS

Temporary injunctions

1. Cases in which temporary injunction may be granted

1Where 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 2[defrauding] his creditors,

3[(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 be 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 3[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.

4[* * *]

1. Amendment of Order XXXIX Rule I made by Act No. 46 of 1999, section 30 has been repealed by Act No. 22 of 2002, section 16 (w.e.f. 1-7-2002).

2. Subs, by Act No. 104 of 1976, for “defraud” (w.e.f. 1-2-1977).

3. Ins. by Act No. 104 of 1976 (w.e.f. 1-2-1977).

4. Sub-rule (2) ins. by Act 46 of 1999, sec. 30 and section 30 of the Act 46 of 1999, by which it was so inserted, has been omitted by Act 22 of 2002, sec. 16 (w.e.f. 1-7-2002).

HIGH COURT AMENDMENTS

Andhra Pradesh.-For Order XXXIX, for rule 1, substitute the following rule, namely:-

“1. 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 defraud his creditors; or

(c) that the defendant threatens to dispossess the plaintiff, or otherwise cause injury or loss to the plaintiff,

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 dispossessing or otherwise causing injury or loss as the Court thinks fit, until the disposal of the suit or until further orders.” (w.e.f. 26-7-1956).

Calcutta.-In Order XXXIX,-

(a) renumber rule 1 as sub-rule (1) thereof; and

(b) after sub-rule (1) as so renumbered, insert the following sub-rules, namely:-

“(2) In case of disobedience, or of breach of the terms of such temporary injunction or order, the Court granting the injunction or making such order 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 person for a term not exceeding six months, unless in the meantime the Court directs his release. (3) The property attached under sub-rule (2) may, when the Court considers it fit so to direct, be sold and, out of the proceeds, the Court may award such compensation to the injured party as it finds proper and shall pay the balance, if any, to the party entitled thereto.” (w.e.f. 3-2-1933)

Gauhati.-Same as in Calcutta.

Kerala.-Order XXXIX,-

(a) renumber rule 1 as sub-rule (1) thereof;

(b) in sub-rule (1) as so renumbered, in clause (a), after the words “wrongfully sold”, insert the words “or delivered”;

(c) after sub-rule (1) as so renumbered, inset the following sub-rule, namely:-

“(2) In case of disobedience of any order passed under sub-rule (1) the Court granting injunction may proceed against the person guilty of such disobedience under sub-rules (3) and (4) of rule 2 of this Order.” (w.e.f. 9-6-1959)

Orissa.-Same as in Pama.

Patna.-In Order XXXIX, in rule 1, at the end, insert the following provisos, namely:- “Provided that no such temporary injunction shall be granted if it would contravene the provisions of section 56 of the Specific Relief Act (Act 1 of 1877): Provided further that an injunction to restrain a sale, or confirmation of a sale, or to restrain delivery of possession, shall not be granted except in a case where the applicant cannot lawfully prefer, and could not lawfully have preferred, a claim to the property or objection to the sale, or to the attachment preceding it, before the Court executing the decree.”

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 be 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.

1[* * * ]

1. Sub-rules (3) and (4) omitted by Act No. 104 of 1976, sec. 86 (w.e.f, 1-2-1977).

STATE AMENDMENTS

Madhya Pradesh.-In Order 39, rule 2, in sub-rule (2), insert the following proviso:-

“Provided that no such injunction shall be granted-

(a) where no perpetual injunction could be granted in view of the provisions of section 38

(b) to stay, the operation of an order for transfer, suspension, reduction in rank, compulsory retirement, dismmissal, removable 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 injuction granted in contraven- tion of these provisions shall be void.” [M.P. Act 29 of 1984].

Uttar Pradesh.-In rule 2, sub-rule (2), interest the following proviso:- “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 section41 of the Specific Relief Act, 1963 (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 employee including any employee of the Government, or

(c) to stay 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 unless adequate security is furnished, or

(g) to stay the proceedings of 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 inforce;

and any order for injunction granted in contravention of these provisions shall be void”.

[U.P. Act 57 of 1976 amended by Notification dated 3.10.1981 ].

1[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 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.]

1. Ins. by Act No. 104 of 1976 (w.e.f. 1-2-1977).

HIGH COURT AMENDMENT

Patna.-In Order XXXIX, in rule 2A, in sub-rule (1), after the words and figure “rule 2” and before the words “or breach of”, insert the words and figures “or section 151”.

[Vide Notification No. 243/R, dated 3rd August, 1979.]

3. Before granting injunction, Court to direct notice to opposite party

The Court shall in all case, 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:

1[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.]

1. Ins. by Act No. 104 of 1976 (w.e.f 1-2-1977).

HIGH COURT AMENDMENT

Andhra Pradesh.-In Order XXXIX, after rule 3, insert the following rules, namely:-

“3 A. In any case where a temporary injunction is granted, the Court may, at the time of the order, or at any time during the pendency of the injunction, call upon the applicant to furnish security for the amount of damages that the Court may determine as payable by the party obtaining the injunction to the other party as compensation for any injury or loss that may be sustained by the letter by reason of the injunction.

3B. The Court shall, on application made after the disposal of the suit, determine the amount payable under rule 3A and make an order awarding it to the applicant.”

1[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.]

1. Ins. by Act No. 104 of 1976 (w.e.f 1-2-1977).

HIGH COURT AMENDMENT

Allahabad.-In Order XXXIX, omit rule 3A.

[Vide Notification No. 103/IV-L-360, dated 3rd February, 1981 (w.e.f. 3-10-1981).]

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:

1[Provided that if in an application for temporary injunction or in any affidavit support such application a part 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 under hardship to that party.]

1. Ins. by Act No. 104 of 1976 (w.e.f 1-2-1977).

STATE AMENDMENTS

Madhya Pradesh.-In Rule 4:-

(i) after the words “by the Court”, inserted the words “for reasons to be recorded, either on its own motion or”; and

(ii) at the end, add the following proviso:-

“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 of injunction.” [M.P. Act 29 of 1984].

Uttar Pradesh.-Same as that of Madhya Pradesh except for the word “delaying” substitute “dilating” in the proviso. [U.P. Act 57 of 1976].

5. Injunction 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

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 decay, or which for any other just and sufficient cause it may be desirable to have sold at once.

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 authorize 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 authorize any samples to be taken, or any observation to be made or experiment to be tried, which may seem necessary or expedient for the purpose of obtaining full information or evidence.

(2) The provisions as to execution of process shall apply, mutatis mutandis, to person authorized to enter under this rule.

HIGH COURT AMENDMENT

Punjab, Haryana and Chandigarh.-In Order XXXIX, in rule 7, in sub-rule (1), for clause (a), substitute the following clause, namely:-

“(a) make an order for detention, preservation or inspection of any relevant documents or other evidence or of any property which is the subject-matter of such suit or as to which any question may arise therein.” (w.e.f. 11-4-1975)

8. Application for such orders to be after notice

(1) An application by the plaintiff for an order under rule 6 or rule may be made1[****] at any time after institution of the suit.

(2) An application by the defendant for a like order may be made 2[***] at any time after appearance.

3[(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.]

1. The words “after notice to the defendant” omitted by Act No. 104 of 1976 (w.e.f. 1977).

2. The words “after notice to the plaintiff omitted by Act No. 104 of 1976 (w.e.f. 1977).

3. Ins. by Act No. 104 of 1976 (w.e.f. 1-2-1977)..

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 possession 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.

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.

HIGH COURT AMENDMENT

Bombay.-In Order XXXIX, after rule 10, insert the following rule, namely:-

“11. Procedure on parties defying orders of Court, and committing breach of undertaking to the Court.- (1) Where the Court orders any party to a suit or proceeding to do or not to do a thing during the pendency of the suit or proceeding, or where any party to a suit or proceeding gives any undertaking to the Court to do or to refrain from doing a thing during the pendency of the suit or proceeding, and such party commits any defaults in respect of or contravenes such order or commits a breach of such undertaking, the Court may dismiss the suit or proceeding, if the default or contravention or breach is committed by the plaintiff or the applicant, or strike out the defences, if the defaults or contravention or breach is committed by the defendant or the opponent.

(2) The Court may, on sufficient cause being shown and on such terms and conditions as it may deem fit to impose, restore the suit or proceeding or may hear the party in defence, as the case may be, if the party that has been responsible for the default or contravention or breach as aforesaid makes amends for the default or contravention or breach to the satisfaction of the Court:

Provided that before passing any order under this sub-rule notice shall be given to the parties likely to be affected by the order to be passed.” (w.e.f. 1-10-1983)

ORDER XL. APPOINTMENT OF RECEIVERS

1. Appointment of receivers

(1) Where it appears to the Court to be just and convenient, the Court may by order-

(a) appointment 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 realization, management, protection, preservation and improvement of the property, the collection of the rents and profits thereof, the application and disposal of such rents and profits, and the execution of documents as the owner himself has, or such those powers as the Court thinks fit.

(2) Nothing in this rule shall authorize 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.

HIGH COURT AMENDMENTS

Allahabad.-In Order XL, in rule (1), in sub-rule (2), after the words “any person”, insert a comma and the words “not being a party to the suit,”.

[Vide Notification No. 2875/35(a)-5(2), dated 10th July, 1943].

Karnataka.-Same as in Allahabad.

2. Remuneration

The Court may by general or special order fix the amount to be paid as remuneration for the services of the receiver.

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.

HIGH COURT AMENDMENTS

Andhra Pradesh.-Same as in Madras.

Karnataka.-Same as in Madras with the following modifications:-

(i) in clause (a), for the words “in the movable property”, substitute the words “in such form and”.

(ii) in clause (b), for the words “at such periods and in such forms as”, substitute the words “at such time and in such form as the Court may direct or”, (w.e.f. 30-3-1967)

Kerala.-Same as in Madras with the modification that in clause (a), for the word “movable”; substitute the word “immovable”.

[Vide Notification No. Bl-3312/58, dated 9th June, 1959.]

Madras.-In Order XL, in rule 3, for clauses (a) and {b), substitute the following clauses, namely:-

“(a) unless the Court otherwise orders, furnish security in the movable property for such amount as the Court thinks fit duly to account for what he shall receive in respect of the property of which he is appointed a receiver.

(b) submit his accounts at such periods and in such forms as may be prescribed.”

[Vide P Dis. No. 577 of 1944.]

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 the 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 his or any loss occasioned by him, and shall pay the balance (if any) to the receiver.

HIGH COURT AMENDMENTS

Andhra Pradesh.-Same as in Madras.

Bombay.-In Order XL, for rule 4, substitute the following rule, namely:-

“4. Enforcement of receiver’s duties.-(i) If a receiver fails to submit his account at such periods and in such form as the Court directs, the Court may order his property to be attached until he duly submits his accounts in the form ordered.

(2) The Court may, at the instance of any party to any suit or proceeding in which a receiver has been appointed or of its own motion, at any time not beyond three years from the date of his discharge by the Court, make an inquiry as to what amount, if any, is due from the receiver as shown by his accounts or otherwise, or whether any loss to the property has been occasioned by his wilful default or gross negligence, and may order the amount found due or the amount of the loss so occasioned to be paid by the receiver into Court or otherwise within a period to be fixed by the Court. All parties to the suit or proceeding and the receiver shall be made parties to any such inquiry. Notice of the inquiry shall be given by registered post prepaid for acknowledgment to the surety, if any, for the Receiver, but the cost of his appearance shall be borne by the surety himself, unless the Court otherwise directs

Provided that the Court may, where the account is disputed by the parties and is of a complicated nature, or where it is alleged that loss has been occasioned to the property by the wilful default or gross negligence of the Receiver, refer the parties to a suit. In all such cases, the Court shall state in writing the reasons for the reference.

(3) If the Receiver fails to pay any amount which he has been ordered to pay under sub-rule (2) of this rule, within the period fixed in the order, the Court may direct such amount to be recovered either on the security (if any) furnished by him under Rule 3, or by attachment and sale of his property, or, if the property has been attached under sub-rule (1) of this rule, by sale of the property so attached, and may apply the proceeds of the sale to make good any amount found due from him or any loss occasioned by him, and shall pay the balance (if any) of the sale proceeds to the Receiver.” (w.e.f 1-10-1983)

Karnataka.-Same as in Madras with the following modification:-

In sub-rule (1), for the words “in the form ordered”, substitute the words “in the manner ordered”, (w.e.f. 30-3-1967)

Kerala.-Same as in Madras with the addition of the following marginal note to the rule:-

“Enforcement of receiver’s duties”

[Vide Notification No. Bl-3312/58, dated 7th April, 1959.]

Madras.-In Order XL, for rule 4, substitute the following rule 4, namely:-

“4. (1) If a receiver fails to submit his accounts at such periods and in such form as the Court directs, the Court may order his property to be attached until he duly submits his accounts in the form ordered.

(2) The Court may, at the instance of any party to any suit or proceeding in which a receiver has been appointed or of its own motion, at any time make an enquiry as to what amount, if any, is due from the receiver as shown by his accounts or otherwise, or whether any loss to the property has been occasioned by his wilful default or gross negligence, and may order the amount found due or the amount of the loss so occasioned to be paid by the receiver into Court or otherwise within a period to be fixed by the Court. All parties to the suit or proceeding and the receiver shall be made parties to any such enquiry. Notice of the enquiry shall be given by registered post to the surety, if any, for the receiver, but the cost of his appearance shall be borne by the surety himself unless the Court otherwise directs:

Provided that the Court may, where the amount is disputed by the parties and is of a complicated nature or where it is alleged that loss has been occasioned to the property by the wilful default or gross negligence of the receiver, refer the parties to a suit. In all such cases the Court shall state in writing its reasons for the reference.

(3) If the receiver fails to pay, any amount which he has been ordered to pay under sub-rule (2) of this rule within the period fixed in the order, the Court may direct such amount to be recovered either from the security (if any) furnished by him under rule 3, or by attachment and sale of his property, or, if his property has been attached under sub-rule (1) of this rule, by sale of the property so attached, and may apply the proceeds of the sale to make good any amount found due from him or any loss occasioned by him and shall pay the balance (if any) of the sale proceeds to the receiver.”

[Vide P Dis. No. 60 of 1933.]

5. When Collector may be 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.

HIGH COURT AMENDMENTS

Andhra Pradesh.-Same as in Madras.

Karnataka.-In Order XL, after rule 5, insert the following rule, namely:-

“6. Where the property belongs to a co-operative society, registered under an appropriate statute or to a member of any such co-operative society, and the Court considers that the interests of those concerned will be promoted by the management thereof by an officer of the Co-operative Department, the Court may with the consent of such officer, appoint him to be receiver of such property.” (w.e.f. 8-1-1987)

Madras.-In Order XL, after rule 5, insert the following rule, namely:-

“6. Where the property belongs to a co-operative society registered under the Madras Co-operative Societies Act or to member of such co-operative society, and the Court considers that the interest of those concerned will be promoted by the management of an officer of the Co-operative Department, the Court may, with the consent of the officer, appoint him to be receiver of such property.”

Andhra Pradesh.-In Order XL, after Yule 6, insert the following rule, namely:-

“7. Where a receiver had been appointed by a Court under rule 1 of this Order, no such receiver may be sued by any person whether he is party to the said suit or not, except with the leave of the Court appointing the receiver or successor Court on an application made in this behalf and the notice of which is served upon the receiver and all other persons who may, in the opinion of the Court be interested in the subject-matter of the suit”

Bombay.-After Order XL, insert the following Order, namely:-

“ORDER XLA
CAVEAT RULES

“1. Every Caveat under section 148A shall be signed by the Caveator or his Advocate and shall be in the form prescribed.

2. Every Caveat shall be presented by the party in person or by his Advocate to the Court or to the Officer authorised to receiver the Caveat. Where the Caveator is represented by an Advocate his Vakalatnama shall accompany the Caveat. When an Advocate instructed by a party to act or appear in a manner has not been able to secure a Vakalatnama in the prescribed form duly signed by the client, he may file written statement signed by him stating that he has instructions from or on behalf of his client to act or appear in the matter and also undertaking to file within a week a Vakalatnama in the prescribed form duly signed by the party.

3. The Caveat presented under rule 2 shall be registered in a Caveat Register in ; Form given below. Before an application for any relief is made to the Court in any proceedings, it shall bear an endorsement from the office of the Court whether a Caveat has or has not been filed.

4. (1) A copy of the Caveat shall be served along with the notice required to be served under section 148A (2).

(2) On receipt of the notice of the Caveat, the applicant or his Advocate, shall intimate to the Caveator or his Advocate, the expenses for furnishing the copies and request him to collect the copies on payment of the said expenses. The, said expenses-should be at the rate of 25 paise per folio of 100 words inclusive of cost of paper.

5. Every application for any relief in a proceeding should be supported by a statement on oath of the applicant stating that no notice under section 148A (2) is received by him or if received whether the applicant has furnished the copies of the application together with the copies of the paper or documents which have been filed or may be filed in support of the application to the Caveator as required by section 148A (4).

6. A notice under section 142A (3) may be served on the Caveator or his Advocate personally or by post Under Certificate of Posting. The notice sent Under Certificate of Posting at the address furnished by the Caveator shall be deemed to be sufficient service on him.

7. Where it appears to the Court, that the object of granting ad interim relief on the application would be defeated by delay, it may record reasons for such opinion and grant ad Interim relief of the application of the applicant till further orders after giving the Caveator an opportunity of being heard.

FORM OF CAVEAT

In the Court of……………………………………………..At…………………………………………………….
Suit/Petition/Appeal No…………………………………………….19………/20 ……

In the matter of :

Caveat under section 148A of the Code of Civil Procedure

………………………………………………………………………Caveator.

Pay that no orders be passed without due notice under section 148A of the Code of Civil Procedure to the Caveator above named in any application for ……………………………(State in short reliefs to be prayed for) in Suit Petition/Appeal No……………………of 19……/20……of this Court (or in Suit/Petition/Appeal likely to be filed in this Court) wherein………………… is/may be Plaintiff/Petitioner/Appellant and…………………is/may be the Defendant/Respondent.

The Caveator’s address for service is……………………………………………………………….

The Caveator undertakes to the Court to give notice by Registered Post A.D. to…………………the Plaintiff/Petitioner/Appellant above mentioned, at the following address………………………

Caveator…………….

REGISTER OF CAVEAT

(O. XL-A, rule 3

In the Court of the…… of …… at Register of Caveat in the year, 19…./20….

Srl No. Dt. of Caveat Name of Caveator and his address for service Nature of proceeding anticipated by caveat or and its number if same is filed Name of plaintiff Applicant in the proceeding in column No. 4 Name of defendant Respondent the pro­ceeding in column No. 4 Date and number of proceeding filed as anticip­ated by Caveator Date of notice served on Caveator Rmks
1 2 3 4 5 6 7 8 9

ORDER XLI. APPEALS FROM ORIGINAL DECREES

ORDER XLI. APPEALS FROM ORIGINAL DECREES

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 1[judgment]:

2[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 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.

2[(3) Where the appeal is against a decree for payment of money, the appellant shall, within such time as the Appellate Court mav allow, deposit the amount disputed in the appeal or furnish such security in respect thereof as the Court may think fit.]

1. Subs. by Act No. 46 of 1999 section 31 for certain words (w.e.f. 1-7-2002).

2. Ins. by Act No. 104 of 1976 (w.e.f. 1-2-1977).

HIGH COURT AMENDMENTS

Allahabad.-In Order XLI, in rule 1,-

(1) in sub-rule (1), after the proviso, insert the following Explanation, namely:-

“Explanation.-The copy of the decree referred to in sub-rule (1) of rule 1 above shall include a deemed decree as provided in Order XX in clause (b) in sub-rule (2) of rule 6-A.”

[Vide Notification. No. 345-VIId-134, dated 8th August, 1994 (w.e.f. 22-10-1994).]

(2) in sub-rule (2), insert the following proviso, namely;-

“Provided that the Court may, for sufficient reasons, accept a memorandum of appeal without a copy of the decree appealed from if the counsel for the appellant certifies that the copy has been applied for and has not yet been issued, subject to the copy being filed subsequently within the time granted by the Court.” (w.e.f. 13-12-1969)

(3) Omit sub-rule (3),

[Vide Notification. No. 552/VIId-184 dated 30th October, 1993 published in Uttar Pradesh Gazette. Pt 2, pp. 1-2, dated 1st January, 1994.]

Andhra Pradesh.-In Order XLI, for rule 1, substitute the following rule, namely:-

“(1) Every appeal shall be preferred in the form of 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 such number of copies of judgment as may be required by the Rules or Notifications issued by the High Court and (unless the Appellate Court dispenses with the filing of the decree or judgment or both for the time being) the decree drawn pursuant to the said judgment,” (w.e.f. 2-8-1988)

Bombay.-In Order XLI, for rule 1, substitute the following rule, namely:-

“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 decree appealed from-and (unless the Appellate Court dispenses therewith) of the judgment on which it is founded:

Provided that where two or more suits have been tried together and a common judgment has been delivered, therefore 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.

*[Explanation.-The copy of the decree-referred to in sub-rule (1) of rule 1 above shall include a deemed decree as provided in Order XX in clause (b) in sub-rule (2) of rule 6A],

(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:

Provided that the Court may dispense with the deposit or security where it deems fit to do so for sufficient cause.

(4) The appellant shall file along with the memorandum of appeal as many copies thereof on plain paper as there are respondents for being served on the respondents along with the notice of appeal:

Provided that the Court in its discretion may permit the appellant to file the necessary number of copies of the memorandum of appeal after the appeal is admitted, within such time as the Court may grant in this behalf.” (w.e.f. 1-10-1983) and *(w.e.f. 9-12-1987)

Delhi.-Same as in Punjab, (w.e.f. 31-10-1966)

Haryana.-Same as in Punjab.

Himachal Pradesh.-Same as in Punjab, (w.e.f. 25-1-1971)

Karnataka.-(i) In Order XLI, in rule 1, in sub-rule (1), at the end, insert the proviso as in Madras, item (iii);

(ii) in sub-rule (2) at the end, insert the following, namely:-

“The memorandum shall also contain a statement of the amount or value of the subject-matter in dispute in the Court of first instance and in the appeal and a statement of the amount of Court-fee paid or payable on the appeal together with the provisions of law under which it is calculated”.

[Vide Notification No. ROC 2296/59, dated 5th November, 1959.] ..

(iii) insert the following sub-rule, namely:-

(3) “When an appeal is presented after the period of limitation prescribed 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, and the Court shall not proceed to deal with the appeal in any way (otherwise than by dismissing it either under rule 11 of this Order or on the ground that it is not satisfied as to the sufficiency of the reason for the delay) until notice has been given to the respondent and his objections, if any, are heard.”

Kerala.-Same as in Madras items (ii), (iii) and (v) with the following modifications:-

(i) in item (ii), insert the following marginal note:-

“Copy of Judgment to be printed for appeal”;

(ii) in item (iii), insert the following marginal note:-

“Power to admit appeal subject to production of copy of decree or order under special or local Act.”

[Vide Notification No. Bl-3312/58, dated 7th April, 1959.]

Madras.-In Order XLI, in rule 1,-

(i) in sub-rule (1), before, the word “copy”, insert the word “certified”, (w.e.f,

25-12-1963) (ii) to sub-rule (1), insert the following words, namely:-

“The copy of the judgment shall be printed copy in every case in which the High Court has prescribed that the judgment shall be printed when a copy is applied for, for the purpose of appeal.”

[Vide GO No. 933, Home (Judl), dated 3rd May, 1917.]

(iii) in sub-rule {!), insert the following proviso, namely:-

“Provided that, in appeals from decrees or order under any special or local Act to which the provisions or Parts II and III of the Limitation Act IX of 1908, do not apply and in which certified copies of such decrees or orders have not been granted within the time prescribed for preferring an appeal, the Appellate Court may admit the memorandum of appeal subject to the production of the copy of the decree or order appealed from within such time as may be fixed by the Court.”

[Vide Dis. No, 2135 of 1918.]

(iv) in sub-rule (1), insert the following further proviso and Explanation, namely: –

“Provided further that when the decree appealed from is a final decree in partition suit with schedules attached thereto, the Appellate Court may dispense with the production of the copy of the decree, if the appellant filed a certified copy of the judgment appealed against and produces also a certificate from the Lower Court as to the value of the subject-matter of the proposed appeal.”

[Vide P Dis. No. 97 of 1963, dated 20th March, 1963.]

“Explanation.-The words ‘Appellate Court’ in sub-rule (1) be deemed to include the Registrar of the High Court, where the appeal is preferred to the High Court.” (w.e.f. 25-12-1963) (v) in sub-rule (2), at the end, insert the following words, namely:-

“The memorandum shall also contain a statement of the valuation of The appeal for the purposes of the Court-fees Act.”

[Vide Dis. No. 2057 of 1917.]

Orissa.-Same as in Patna.

Patna,-(i) In Order XLI, in rule 1, in sub-rule (1), insert the following proviso, namely:-

“Provided that when the decree appealed from is a final decree in a partition suit and embodies the allotment papers, the Appellate Court may accept a copy of the decree containing only a portion of the allotment papers, provided further that the Appellate Court may, subsequently, on the application of the respondent require a copy of the remaining or any further portion of the allotment papers to be filed by the appellant.”

(ii) insert the following as second proviso, namely:-

“Provided further that, in appeals from decrees or orders under any special or local Act to which the provisions of Parts II and III of the Limitation Act, 1908, do not apply and in which certified copies of such decrees or orders have not been granted within the time prescribed for preferring an appeal, the Appellate Court may admit the memorandum of appeal subject to the production of the copy of the decree or order appealed from within such time as may be fixed by the Court” (w.e.f. 5-4-1961).

Punjab.-In Order XLI, in rule (1), in sub-rule (1), after the proviso, insert the following further proviso, namely:-

“Provided further that the Court may permit the appeal to be filed with true copies duly authenticated by an advocate as correct.”

Rajasthan.-In Order XLI, in rule 1, insert the following proviso, namely:-

“Provided that when me decree appealed from is a final decree in a partition suit, the Appellate Court may dispense with the production of the copy of the decree if the appellant filed a certified copy of the judgment appealed against.”

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.

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.

HIGH COURT AMENDMENT

Allahabad.-In Order XLI, in rule 3, for sub-rule (1), substitute the following sub-rule, namely:-

“(1) Where the memorandum of appeal is not drawn up in the manner in hereinbefore prescribed, or accompanied by the copies mentioned in rule 1(1),.it may be rejected, or where the memorandum of appeal is not drawn up in the manner prescribed, it may be returned to the appellant for the purpose of being amended within a time to be fixed by the Court or be amendment then and there.”

[Vide Notification No. 2058/35{a), dated 17th June, 1916.]

1[3A. Application for condonation of delay

(1) When an appeal is presented after the expiry of the period of limitation specified therefor, 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 for 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.]

1. Ins. by Act No. 104 of 1976 (w.e.f. 1-2-1977).

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 plaintiff 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

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.

1[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) 2[Subject to the provisions of sub-rule (3)], the Court may make an ex pane order for stay of execution pending the hearing of the application.

3[(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.]

1. Ins. by Act No. 104 of 1976 (w.e.f. 1-2-1977).

2. Subs. by Act No. 104 of 1976 for certain words (w.e.f. 1-2-1977).

3. Ins. by Act No. 104 of 1976 (w.e.f. 1-2-1977).

HIGH COURT AMENDMENTS

Allahabad.-In Order XLI, in rule 5, for sub-rule (5), substitute the following sub-rule, namely:-

“(5) Notwithstanding anything contained in the foregoing sub-rules where the appeal is against a decree for payment of money, the Appellate Court shall not make an order staying the execution of the decree, unless 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 Appellate Court may think fit.”

[Vide Notification. No. 552/VII-d-134 dated 3rd October 1993, published in Uttar Pradesh Gazette Pt. II, pp. 1-2, dated 1st January, 1994.]

Andhra Pradesh.-Same as in Madras.

Calcutta.-In Order XLI, in rule 5, in sub-rule (2), for the words “but the Appellate Court may for sufficient cause order stay of execution of such decree”, substitute the words “but the Appellate Court may subject to sub-rule (3) of rule 6 of this Order, for sufficient cause order stay of execution of such decree”.

[Vide Notification No. 6874-G, dated 5th October, 1948.]

Karnataka.-In Order XLI, in rule 5, in sub-rule (1), at the end, insert the following words, namely:-

“and may, when the appeal is against a preliminary decree, stay the making of a final decree in pursuance of the said preliminary decree or the execution of any such final decree if already made or when made or stay all or any of the further proceedings to be taken pursuant to such preliminary decree.

Nothing herein contained shall affect or limit the inherent power of the Court to stay other proceedings either before it or any Court subordinate to it in appropriate cases.”

[Vide Notification No. ROC 2296/59, dated 5th November, 1959.]

Kerala.-(a) Same as in Madras.

(b) in sub-rule (3), insert the following proviso, namely:-

“Provided that in the case of decree charging immovable properties the Appellate Court may in its discretion dispense with such security in whole or in part.”

[Vide Notification No. Bl-312/58, dated 9th June, 1959.]

Madras.-In Order XLI, in rule 5,-

(a) in sub-rule {!}, after the words “but the Appellate Court may for sufficient cause order stay of execution of such decree”, insert the words “on such terms and conditions as the court may deem fit”.

(b) in sub-rule (1), at the end, delete full stop and insert the following words, namely:- “and may, when the appeal is against a preliminary decree stay the making of a final decree in pursuance of the preliminary decree or the execution of any such final decree, if already made.”

[Vide P Dis. No. 164 of 1932.]

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.

HIGH COURT AMENDMENT

Calcutta.-In Order XLI, in rule 6, after sub-rule (2), insert the following sub-rule, namely:-

“(3) Where no such application has been presented to the Court which made the order as application for stay of the sale shall not be entertained by the appellate Court.” (w.e.f. 5-10-1948)

7. [No security to be required from the Government or a public officer in certain cases. Rep. by the A.O. 1937.]

8. Exercise of powers 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

1[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.]

1. Subs. by Act No. 46 of 1999.section 31 (w.e.f. 1-7-2002).

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.

HIGH COURT AMENDMENT

Allahabad.-In Order XLI, in rule 10, in sub-rule (1), in the proviso, for the word “India” occurring for the second time substitute the words “the State”.

[Vide Notification No. 43/vii-d-29, dated 1st June, 1957.]

11. Power to dismiss appeal without sending notice to Lower Court

1[(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 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.

(3) The dismissal of an appeal under this rule shall be notified to the Court from whose decree the appeal is preferred.

2[(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.]

1. Subs. by Act No. 46 of 1999, section 31 (w.e.f. 1-7-2002).

2. Ins. by Act No. 104 of 1976 (w.e.f 1-2-1977).

1[11 A. Time within which hearing under rule 11 should be concluded

Every appeal shall be heard 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.]

1. Ins. by Act No. 104 of 1976 (w.e.f 1-2-1977).

12. Day for hearing appeal

(1) Unless the Appellate Court dismisses the . appeal under rule 11, it should fix a day for hearing the appeal.

1[(2) Such day shall be fixed with reference to the current business of the Court.]

1. Subs. by Act No. 46 of 1999, section 31 (w.e.f. 1-7-2002).

1[13. Omitted.]

1. Omitted by Act No. 46 of 1999, section 31 (w.e.f. 1-7-2002).

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.

1(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.]

1. Ins. by Act No. 104 of 1976 (w.e.f 1-2-1977).

HIGH COURT AMENDMENTS

Allahabad.-In Order XLI, in rule 14, in sub-rule (1), for the words “or on his pleader in Appellate Court”, substitute the following words, namely:-

“or on his pleader competent to service the notice on his behalf”.

[Vide Notification No. 714-IVH-36A, dated 21st March, 1981.]

Andhra Pradesh.-In Order XLI, rule 14, in sub-rule (1), insert the following proviso, namely:-

“Provided that the Appellate Court may dispense with service of nonce on respondents who have remained absent, against whom the suit has proceeded ex parte in the Court from whose decree the appeal is preferred or who have been declared absent by the said Court.”

Calcutta.-In Order XLI, in rule 14, after sub-rule. (2), insert the following sub-rule, namely:-

“(3) It shall be in the discretion of the Appellate Court to make an order, at any stage of the appeal whether on its own motion, or ex parte, dispensing with service of such notice on any respondent who did not appear, either at the hearing in the Court whose decree is complained of or at any proceeding subsequent to the decree of that Court or on the legal representatives of any such respondent: Provided that-

(a) The Court may require notice of the appeal to be published in any newspaper or newspapers as it may direct.

(b) No such order shall percolate any such respondent or legal representative from appearing to contest the appeal.”

Delhi.-Same as in Punjab.

Guahati.-Same as in Calcutta.

Haryana.-Same as in Punjab.

Himachal Pradesh.-Same as in Punjab.

Kerala.-In Order XLI, after rule 14, insert the following rule, namely:-

“14A. Substitution of letter for notice.-(i) The Court may, notwithstanding anything hereinbefore contained, substitute for notice a letter signed by the Judge or such officer as he may appoint in this behalf, where the respondent is the Presiding Officer of a House of Parliament or of a State Legislature or the Chairman of a Committee thereof or, in the opinion of the Court of a rank entitling him to such mark of consideration.”

Karnataka.-Same as in Andhra Pradesh.

Madras.-In Order XLI, in rule 14, in sub-rule (1), insert the following proviso, namely:-

“Provided that the Appellate Court may dispense with service of notice on respondent who have remained absent, against whom the suit has proceeded ex parte in the Court from whose decree the appeal is preferred or who have been declared absent by the said Court.”

[Vide Notification No. 221 of 1976, published in Tamil Nadu Gazette, Pt. III, Sec. 2, dated 17th November, 1976.]

Orissa.-In Order XLI, in rule 14, after sub-rule (2), insert the following sub-rule, namely:-

“(2A) Where the passing of an ex parte interlocutory order has, in the opinion of the Court, the effect of causing delay in any proceeding pending in a subordinate Court, notice shall issue simultaneously both to the respondent and to his pleader in the said proceeding in the subordinate Court, fixing a short date for return of the service. If the pleader has been served with the notice but the notice to the respondent is returned unnerved and no appearance is made on his behalf the Appellate Court may in its discretion declare the service on the pleader to be sufficient service on the respondent and shall intimate the same to the respondent by registered post at the cost of the appellant.” (w.e.f. 14-5-4984)

Punjab.-In Order XIL, in rule 14,-

(i) in sub-rule (2), insert the following proviso, namely:-

“Provided that the notice shall be served on the Advocate of the party who appeared in the subordinate Court where the matter is still pending.”

[Vide Notification. No. G.S.R. 39 C.A. 5/1908/S. 12257 (w.e.f. 11-4-1975).]

(ii) after sub-rule (2), insert the following sub-rule, namely:-

“(3) it shall be in the discretion of the Appellate Court to make an order, at any stage of the appeal whether on the application of any party or on its own motion, dispensing with service of such notice on any respondent who 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, or on the legal representatives of any such respondent: Provided that-

(a) that Court may require notice of the appeal to be published in any newspapers or in such other manner as it may direct;

(b) no such order shall preclude any such respondent or legal representative from appearing to contest the appeal.”

(iii) after sub-rule (3), insert the following sub-rules, namely:-

“(4) Where the respondent or any respondents has migrated to Pakistan and he cannot be served in the ordinary way, if the appeal has arisen out of a suit to obtain relief respecting, or compensation for wrong to immovable property, the notice shall be served on the Custodian of Evacuee Property, Punjab or Delhi, as the case may be. In all other cases, the notice shall be served on such Custodian and a copy of the notice shall be sent, by registered post, to the Secretary-General to the Pakistan Government.

(5) The provisions of sub-rule (4) shall mutatis mutandis apply to appellants, who have migrated to Pakistan and who cannot be served in the ordinary way.” (iv) after sub-rule (5) insert the following sub-rule, namely:-

“(6) Every notice of appeal to a respondent other than a respondent stated to be pro forma shall be accompanied by a copy of the memorandum of appeal or, if so permitted, by a concise statement.”

Kerala.-In Order XIL, after rule 14, insert the following rule, namely:-

“14A. Substitution of letter for notice.-(1) The Court may, notwithstanding anything herein before contained, substitute for notice a letter signed by the Judge or such officer as he may appoint in this behalf, where the respondent is the Presiding Officer of a House of Parliament or of a State Legislature or the Chairman of a Committee thereof or, 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 notice and subject to the provisions of sub-rule (3), shall be treated in all respect as a notice.

(3) A letter so substituted may be sent to the respondent by post or by a special messenger selected by the Court, or in any other manner which the Court thinks fit; and where the respondent has an agent empowered to accept service, the letter may be delivered or sent to such agent.” (w.e.f. 16-7-1963).

Orissa.-Same as in Patna.

Patna.-In Order XLI, after rule 14, insert the following rule, namely:-

“14A. The Appellate Court may, in its discretion, dispense with the service of notice herein before required on a respondent, or on the legal representatives of a deceased respondent, in a case where such respondent did not appear, either at any stage of the proceedings in the Court whose decree is appealed from or in any proceedings subsequent to die decree of that Court and no relief is claimed against such opposite party or respondent or his legal representative either in the original case or appeal.”

115. Contents of Notice.

1. Rep. by the Code of Civil Procedure (Amendment) Act, 1999 (46 of 1999) sec. 31 (w.e.f. 1-7-2002).]

HIGH COURT AMENDMENTS

Bombay.-In Order XLI, after rule 15, insert the following rule, namely:-

“15A. Dismissal for want of prosecution.-Where after the admission of an appeal the rules or the special directions of the Court require the appellant to take any steps in the prosecution of the appeal before a fixed date, and where after due notice intimating the steps to be taken the appellant fails to take such steps within the time prescribed by the rules or allowed by the Court, the Court may direct the appeal to be dismissed for want of prosecution or may pass such other order as it thinks fit.”

Madhya Pradesh.-In Order XLI, after rule 15, insert the following rule, namely:-

“15A- Failure to take necessary steps after admission of an appeal in the High Court.- Where on the admission of an appeal in the High Court, the Rules of the High Court require the appellant to take any steps in the prosecution of the appeal before a fixed date, and where, after due service of a notice intimating the steps to be taken and the date before which they mush be taken, the appellant fails to take such steps within the prescribed time, the Court may direct the appeal to be dismissed for want of prosecution or may pass such other order, as it thinks fit.” (w.e.f. 16-9-1960).

Procedure on hearing

16. Right to begin

(1) On the day fixed, or on any other day to which the hearing may be adjourned, the appellant shall he 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.

HIGH COURT AMENDMENT

Allahabad.-In Order XLI, in rule 16, in sub-rule (1), for the words “On the day fixed, or on any other day to which the hearing may be adjourned”, substitute the words “When the appeal is called on for hearing”.

[Vide Notification No. 14186/VII-d-147, dated 22nd December, 1951.]

17. Dismissal of appeal for appellants default

(1) Where on the day fixed, or on any other day 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.

1[Explanatipn—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 exparte,

1. Ins. by Act No. 104 of 1976 (w.e.f 1-2-1977).

HIGH COURT AMENDMENT

Allahabad.-In Order XLI, in rule 17, in sub-rule (1), omit the words “on the day fixed, or on any other day to which the hearing may be adjourned” .

[Vide Notification No. 14186/VII-d-147, dated 22nd December, 1951.]

118. Dismissal of appeal where notice served in consequence of appellant’s failure to deposit cost.

1. Omitted by The Code of civil procedure (Amendment) Act, 1999 (Act No. 46 of 1999), section 31 (w.e.f. 1-7-2002).

HIGH COURT AMENDMENT

Bombay.-In Order XLI, after rule 18, insert the following rule, namely:-

“18A. Dismissal for want of prosecution.-Where after the admission of an appeal the rules or the special directions of the Court require the appellant to take any steps in the prosecution of the appeal before a fixed date, and where after due notice intimating the steps to be taken the appellant fails to take such steps within the time prescribed by the rule or allowed by the Court, the Court may direct the appeal to be dismissed for want of prosecution or may pass such other order as it thinks fit.” (w.e.f. 1-10-1983)

19. Re-admission of appeal dismissed for default

Where an appeal is dismissed under rule 11, sub-rule (2) or rule 17 1[***], 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.

1. Words “or rule 18” omitted by Act No. 46 of 1999, section 31 (w.e.f. 1-7-2002).

HIGH COURT AMENDMENTS

Andhra Pradesh.-Same as in Madras.

Bombay.-In Order XLI, for rule 19, substitute the following rule, namely:-

“19. Re-admission of appeal dismissed for default.-Where an appeal is dismissed under rule 11, sub-rule (2), or rule ISA or rule 17 or rule 18, the appellant may apply to the Appellate Court for 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 in taking the necessary steps in the prosecution of the appeal 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.” (w.e.f. 1-10-1983)

Delhi.-Same as in Madras.

Gujarat.-Same as in Madras.

Himachal Pradesh.-Same as in Madras. MA

Karnataka.-Same as in Madras.

Kerala.-Same as in Madras.

Madras.-In Order XLI,-

(a) renumber rule 19, as sub-rule (1) thereof, and

(b) after sub-rule (1) as so renumbered, insert the following sub-rule, namely:-

“(2) The provisions of section 5, Limitation Act, 1908, shall apply to applications under sub-rule (1).”

Madhya Pradesh.-After the words and figures “sub-rule (2)”, insert the words and figures “or rule ISA”, (w.e.f. 16-9-1960)

Punjab-Same as that of Madras.

20. Power to adjourn hearing and direct persons appearing interested to be made respondents

1[(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[(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.]

1. Rule 20 re-numbered as sub-ruled) thereof by Act No. 104 of 1976 (w.e.f. 1-2-1977).

2. Ins. by Act No. 104 of 976 (w.e.f. 1-2-977).

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 Appellant 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.

HIGH COURT AMENDMENTS

Andhra Pradesh.-Same as in Madhya

Pradesh. Gujarat.-Same as in Madhya Pradesh. (w.e.f. 17-8-1961)

Karnataka.-Same as in Madhya Pradesh. (w.e.f. 5-11-1959)

Kerala.-Same as in Madhya Pradesh. {w.e.f. 9-4-1959)

Madhya Pradesh.-In Order XLI,-

(a) re-number rule 21 as sub-rule (1) thereof; and

(b) after sub-rule (1), as so renumbered, insert the following sub-rule, namely:-

“(2) The provision of section 5 of the Indian Limitation Act, IX of 1908 (now section 5 of Limitation Act, 1963) shall apply to applications under sub-rule (1).” (w.e.f. 16-9-1960)

Madras.-Same as in Madhya Pradesh.

22. Upon hearing respondent may object to decree as if he had preferred a separate appeal

(1) Any respondent, though he may not have appealed from any part of the decree, may not only support the decree 1[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 Appellant 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.

2[(3) Omitted]

(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 appeal by indigent persons shall, so far as they can be made applicable apply to an objection under this rule.

1. Subs. by Act No. 104 of 1976 for certain words (w.e.f. 1-2-1977).

2. Omitted by Act No. 46 of 1999, section 31 (w.e.f. 1-7-2002).

HIGH COURT AMENDMENT

Allahabad.-In Order XLI, in rule 22, in sub-rule (1), after the word “hearing” and before the word “the” insert the words “or appearance”.

[Vide Notification No. 348/VII-d.168, dated 8th August, 1999 (w.e.f. 22-10-1994}.]

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.

HIGH COURT AMENDMENTS

Allahabad.-In Order XLI, in rule 23,-

(a) after the words “and the decree is reversed in appeal”, insert the words “or where the Appellate Court while reversing or setting aside the decree under appeal considers it necessary in the interest of justice to remand the case, it”.

(b) omit the words “the Appellate Court” occurring thereafter and omit also the words “if it thinks fit”, occurring after the word “may”, (w.e.f. 1-6-1957)

Andhra Pradesh.-Same as in Madras.

Karnataka.-In Order XLI, for rule 23, substitute the following rule, namely:-

“23. 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, or where the Appellate Court in reversing or .setting aside the decree under appeal considers it necessary in the interests of Justice to remand the case, the Appellate Court may by order remand the case, and may further direct what issue or issues shall be tried in the case so remanded and whether any further evidence shall or shall not be taken after remand, and shall send a copy of its judgment or order to the Court from whose decree the appeal is preferred, with directions to re-admit the suit under its original number in the register of ‘civil suits, and proceed to determine the suit; the evidence, if any, recorded during the original trial shall subject to all just exceptions, be evidence during the trial after remand.” (w.e.f. 5-11-1959)

Kerala.-Same as in Madras, (w.e.f. 9-6-1959)

Madras.-In Order XLI, in rule 23,-

(a) after the words “the decree is reversed in appeal”, insert the words “or where the Appellate Court, in reversing or setting aside the decree under appeal considers it necessary in the interests of justice to remand the case”; and

(b) omit the words “if it thinks fit,” occurring after the words “the Appellate Court may”.

Rajasthan.-In Order XLI, for rule 23, substitute the following rule, namely:-

“23. Remand of case by Appellate Court.-Where the Court from whose decree an appeal is preferred has disposed of the suit on a preliminary point and the decree is reversed in appeal, or where the Appellate Court while reversing or setting aside the decree under appeal, considers it necessary in the interests of justice to remand the case, it may 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, with direction 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.” (w.e.f. 11-3-1965)

1[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.]

1. Ins. by Act No. 104 of 1976 (w.e.f 1-2-1977).

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 judgment, 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 Appellate Court proceeds.

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 1[within such time as may be fixed by the Appellate Court or extended by it from time to time.]

1. Ins. by Act No. 104 of 1976 (w.e.f 1-2-1977).

26. Finding and evidence to be put on record. Objections to finding

(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.

1[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.]

1. Ins. by Act No. 104 of 1976 (w.e.f 1-2-1977).

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

1[(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.

1. Ins. by Act No. 104 of 1976 (w.e.f 1-2-1977).

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.

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

30. Judgment when and where pronounced

1[(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 open Court, either at once or on some future day of which notice shall be given to the parties or their pleaders.

2[(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 j udgment, but a copy of the whole judgment shall be made available for the perusal of the parties or their pleaders immediately after the judgment in pronounced.]

1. Rule 30 re-numbered as sub-rule (1) of that rule by Act No. 104 of 1976 (w.e.f. 1-2-1977).

2. Ins. by Act No. 104 of 1976 (w.e.f. 1-2-1977).

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.

HIGH COURT AMENDMENTS

Allahabad.-In Order XLI, in rule 31, at the end, substitute a colon for the full stop and insert the following proviso, namely:-

“Provided that where the Presiding Judge pronounces his judgment by dictation to a shorthand writer in open Court, the transcript of the judgment so pronounced shall, after such revision as may be deemed necessary, be signed by the Judge and shall bear the date of its pronouncement.”

[Vide Notification No. 8799, dated 13th January, 1939]

Andhra Pradesh.-Same as in Madras.

Bombay.-In Order XLI, in rule 31, at the end, substitute a colon for the full stop and insert the following proviso, namely:-

“Provided that where the judgment is pronounced by dictation to a shorthand writer in open Court the transcript of the judgment so pronounced shall, after making such corrections therein as may be necessary, be signed by the Judge or the Judges concerned and shall bear the date of its pronouncement.” (w.e.f. 1-10-1983}

Gujarat.-Same as in Allahabad.

Karnataka.-In Order XLI, in rule 31, insert the following proviso, namely:-

“Provided that where the Presiding Judge is specially empowered by the High Court to pronounce his judgments by dictation to a shorthand writer in open Court, the transcript of the judgment so pronounced shall after such revision as may be deemed necessary be signed by the Judge.”

[Vide Notification No. ROC 2296/59, dated 5th November, 1959].

Kerala.-In Order XLI,-

(a) renumber rule 31 as sub-rule (1) thereof, and

(b) after sub-rule (1) as so remembered, insert the following sub-rules, namely:-

“(2) In cases where a judgment is not written by the Judge in his own hand, but dictated and taken down verbatim by another person, each page of the judgment shall be initialled by him.

(3) Where the judgment is pronounced by dictation to a shorthand writer in open Court, the transcript of the judgment so pronounced shall, after such revision as may be deemed necessary, be signed by the Judge.”

[Vide Notification No. Bl-3312/58, dated 7th April, 1959.]

Madras.-In Order XLI, for rule 31, substitute the following rule, namely:-

“31. 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 bear the date on which it is pronounced and shall be signed by the Judge or the Judges concurring therein:

Provided that, where the presiding Judge is specially empowered by the High Court, to pronounce his judgment by dictation to a shorthand-writer in open Court, the transcript of the judgment so pronounced shall, after such revision as may be deemed necessary, be signed by the Judge.”

Orissa.-Same as in Allahabad, (w.e.f. 21-9-1960}

Patna.-Same as in Allahabad inserting after the words “signed by the Judge” the words “or by Judges concurring therein”. Rajasthan.-In Order XLI,-

(a) renumber rule 31 as sub-rule (1) thereof; and ,:

(b) after sub-rule (1) as so renumbered, insert the following sub-rules, namely:-

“{2} Where the judgment is pronounced by dictation to a shorthand-writer in open Court, the transcript of the judgment so pronounced shall, after such revision as may be deemed necessary, be signed by the Judge and shall bear the date of its pronouncement.

(3) In cases where a judgment is not written by the Judge in his own hand, but dictated and taken down verbatim by another person, each page of the judgment shall be initialled by him.” (w.e.f. 11-3-1965)

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.

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 notwithstandng 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]:

2[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 made 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. If has power to pass a decree against Y.

1. Ins. by Act No. 104 of 1976 (w.e.f. 1-2-1977).

2. Ins. by Act No. 9 of 1922, s. 4, which under s. 1(2) thereof, may be brought into force in any State by the State Government, on an specified date. The Act has been brought into force in Bombay, Bengal U.P., Punjab, Bihar, C.P. Assam, Orissa and Tamil Nadu.

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

35. Date and contents of decree

(1) The decree of the Appellate Court shall bear date the day of 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 decre—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.

HIGH- COURT AMENDMENTS

Andhra Pradesh.-Same as in Madras.

Bombay.-In Order XLI, in rule 35, in sub-rule (2), after the word “respondent/’, insert the words “their registered addresses”, (w.e.f. 1-10-1983}

Delhi.-Same as in Punjab.

Haryana.-Same as in Punjab.

Himachal Pradesh.-Same as in Punjab.

Kerala.-In Order XLI, in rule 35,-

(a) in sub-rule (2), at the end, omit the full stop and insert the words “in appeal as also in the decree appealed from.”

(b) in sub-rule (4), insert the following proviso, namely:-

“Provided that the provisions of the sub-rule shall not apply to decrees passed by the High Court.”

[Vide Notification No. Bl-3312/58, dated 9th June, 1959.]

Madras.-In Order XLI, in rule 35, in sub-rule (2), after the word “respondent,” insert the words “their addresses for service,”,

[Vide ROC No. 3299 B-I, dated 29th January, 1930.]

Punjab.-In Order XLI, in rule 35, insert the following further proviso, namely:-

“Provided also in the case of the High Court that the Registrar, or such other officer as may be in charge of the Judicial Department from time to time, shall sign the decree on behalf of the Judge or Judges who passed it; but that such Registrar, or such officer, shall not sign such decree on behalf of a dissenting Judge.”

[Vide Notification No. 20-R-XI-Y-I, dated 29th January, 1937.]

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.

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.

HIGH COURT AMENDMENTS

Allahabad.-In Order XLI, in rule 37,-

(a) omit the words “and shall be filed with the original proceedings in the suit”;

(b) insert the following para, namely:-

“Where the Appellate Court is the High Court the copies aforesaid shall be filed with the original proceedings in the Court.”

(c) after rule 37, insert the following rule, namely:-

“38. (1) An address for service filed under Order VII, rule 19, or Order VIII, rule 11, or subsequently altered under Order VII, rule 24, or Order VIII, rule 12, shall hold good during all appellate proceedings arising out of the original suit or petition,

(2) Every memorandum of appeal shall state the addresses for service given by the opposite parties in the Court below, and notices and processes shall issue from the Appellate Court to such address.

(3) Rule 21, 22, 23, and 24 or Order VII shall apply, so far as may be, to appellate proceedings.”

Bombay.-In Order XLI, after the rule 37, insert the following rule, namely:-

“38. Registered address to hold good during appellate proceedings.-(1) The registered address filed under Order VI, Rule 14-A shall hold good during all appellate proceedings arising out of the original suit for petition, subject to any alteration under sub-rule (3) hereof.

(2) Every memorandum of appeal shall state the registered address given by the opposite parties in the Court below, and notices and processes shall issue from the Appellate Court to such addresses.

(3) Sub-rules (2) and (4) (i) and (ii) of Rule 14-A of Order VI shall apply, so far as may be, to appellate proceedings.” (w.e.f. 1-10-1983)

Delhi.-Same as in Punjab.

Gujarat.-In Order XLI, after rule 37, insert the following rule, namely:-

“38. Every memorandum of appeal shall state the addresses for service given by the opposite parties in the Court below, and notices and processes shall issue from the Appellate Court to such addresses.” (w.e.f. 17-8-1961).

Orissa.-Same as in Patna.

Patna.-In Order XLI, after rule 37, insert the following rule, namely:-

“38. (1) An address for service filed under Order VII, rule 19, or Order VIII, rule 11, or subsequently altered under Order VII, rule 22 or Order VIII, rule 12, shall hold good for all notices of appeals and all appellate proceedings of the original suit or petition.

(2) Every memorandum of appeal shall state the addresses for service given by the opposite parties in the Court below, and notices and processes shall issue from the Appellate Court for such addresses.

(3) Rule 21 and 22 of Order VII, shall apply, so for as may be, to appellate proceedings.”

Punjab and Haryana.-In Order XLI, after rule 37, insert the following rule, namely:-

“38. (1) An address for service filed under Order VII, rule 19 or Order VIII, rule 11, or subsequently altered under Order VII, rule 24, or Order VIII, rule 12, shall hold good during all appellate proceedings arising out of the original suit or petition.

(2) The notice of appeal and other processes connected with proceedings therein, shall issue to the addresses mentioned in clause {!), above, and service effected at such addresses shall be as effective as if it had been made personally on the appellant or respondent, as the case may be.

(3) Rules 21, 22, 23, 24 and 25 of Order VII shall apply, so far as may be, to appellate proceedings.” (w.e.f. 24-11-1927}

Allahabad.-After Order XLI insert the following Order XL1A, namely:-

“ORDER XLIA
APPEALS FROM ORIGINAL DECREES IN THE HIGH COURT

1. Extent.–The rules contained in this Order shall apply to appeals in the High Court notwithstanding anything to the contrary contained in Order XLI or any other Order and the rules contained in Order XLI shall be deemed to have been modified or repealed in their application to such appeals to the extent of their inconsistency or repugnancy or as indicated herein.

2. Service of notice on pleader.-If a party appears by a pleader all notices to him shall be served upon such pleader, unless the Court directs otherwise.

3. Hearing appear under rule 11 of Order XLI on date of presentation.-Where a memorandum of appeal is admitted on presentation the Court may, if it deems fit, proceed to hear the appeal under rule 11 or Order XLI on the date at which it is presented.

4. Day for appearance of respondent.-Unless the appeal is dismissed under rule 11 of Order XLI a day shall be fixed for the appearance of the respondent and notice thereof shall be given to him. The notice shall call upon him to enter appearance on or before the day so fixed and answer the appeal and inform him (hat the appeal shall be heard on such day thereafter as may be subsequently notified.

5. Mode of entering appearance.-The respondent shall enter appearance by filing a memorandum of appearance in such form as may be prescribed by the Court.

6. Notice of day for hearing appeal.-Notice of the day fixed for the hearing of the appeal shall be given by making an entry thereof in the day’s cause list of the Court for that day and no other notice to the parties shall be necessary.

7. Application of rules 14 and 15 of Order XLI.-Rules 14 and 15 of Order XLI shall not apply in so far as they may be inconsistent with the rules of the Court regarding the nature, service or publication of notices.

8. Amendment of rules 16,17 and 18 of Order XLI.-The following amendments shall be deemed to have been made in Order XLI, namely :-[The Amendments to the rules have been incorporated in the rules themselves (see ante)].

9. Dismissal of appeal for default.-Where default is made is compliance with any rules of the Court which provide for the dismissal of an appeal for such default, the Court may dismiss the appeal.

10. Upon hearing, respondent may object to decree as if he had preferred separate appeal.-Any respondent, though he may not have appealed from any part of the decree, may not only support the decree on any of the grounds decided against him in the Court below, but take any cross-objection to the decree which he could have taken by way of appeal, provided he has filed such objection within one month from the day fixed for his appearance in the notice served upon him in accordance with rule 4 or within such further time as the Court may deem fit to allow.

11. Application of rule 31 of Order XLI.-Rule 31 of Order XLI shall not apply when the Court dismisses an appeal under rule 11 of that Order.”

[Vide Notification No. 14186/VII-d-147, dated 22nd December, 1951.]

Andhra Pradesh.-After Order XLI, insert Order XLIA, rules 1 to 14 which are same as in Madras except rule 11 which is as follows:-

“11. Cost of application and of adjournment.-When costs are awarded, unless the Court otherwise orders, the costs of a party appearing upon any application before the Registrar of the Court shall be Rs. 15, and the costs of appearing when the appeal is in the daily cause list for final hearing and is adjourned shall be Rs. 30. At the request of any party the Registrar shall cause the order to be drawn up and the costs to be inserted therein.”

Karnataka.-After Order XLI, insert the following Order, namely:-

“ORDER XLIA
APPEALS TO THE HIGH COURT FROM ORIGINAL DECREES OF SUBORDINATE COURTS

1. Rules contained in Order XLI shall apply to appeals in the High Court of Mysore with the modifications contained in this Order.

2. Where the memorandum of appeal is presented through an Advocate the memorandum shall state his address for service within the City of Bangalore and such address shall be the address for service of the appellant for all notices and processes issued in or in connection with the appeal or any Interlocutory Application in the appeal.

3. When any notice issued in an appeal preferred to the High Court fixes a date on which or a period within which the parties served with the notice shall enter appearance in the appeal such notice shall be deemed to be a notice fixing a day for hearing the appeal within the meaning of rule 12 of Order XLI.

4. The Court may direct that service of a notice of appeal or other notice of process shall be made by sending the same in a post registered cover prepaid for acknowledgment and addressed to the address for service of the party to be served which has been filed by him in the lower Court or in the High Court. A notice sent in accordance with this rule shall be deemed to be served on the day on which it would in ordinary course of post be delivered to him if the postal cover is not returned within a period of 15 days. When the cover is actually delivered to the party the postal acknowledgment purporting to contain the signature of the party may be deemed to be proof of sufficient service of the notice on the party on the day on which it is actually delivered to him. If the postal cover is returned unserved, any endorsement purporting to have been made thereon by delivery peon or other employee or officer of the postal department shall be prima facie evidence of the statements made therein.

5. If any party or his Advocate to whom a memorandum of cross-objections has been tendered has refused or neglected for three days from the date of such tender to give the acknowledgement mentioned in rule 22 (3) of Order XLI the respondent preferring such memorandum of cross-objections may file into Court an affidavit stating the facts and the Registrar may dispense with service of the copies of the memorandum.

6. (1) Rule 31 of Order XLI shall not apply to the High Court. If judgment is given orally, a shorthand note thereof shall be taken by a shorthand writer appointed for the purpose and a transcript made by him shall be signed or initialled by the Judge or Judges concurring therein after making such corrections as may be considered necessary.

(2) Sub-rule (4) of Rule 35 of Order XLI shall not apply to the High Court. Decrees of the High Court shall be signed by the Registrar, Deputy Registrar or Assistant Registrar, as indicated by the Chief Justice.

7. (1) If an appellant or petitioner fails to show due diligence in making all deposits or payments or in taking all necessary steps as required by the Rules of the High Court in the matter of the preparation of the paper book of any appeal or petition, the Registrar may in his discretion, and shall, if the maximum period of extension of the time permissible under sub-rule (9) of rule 1, Chapter IV has expired, post the appeal or petition before the appropriate Bench for orders. The Bench may either grant further time for rectifying the default or omission, or if it thinks fit dismiss the appeal or petition.

(2) Any appeal or petition dismissed under sub-rule (1) may be re-admitted by Court if an application for readmission is made accompanied by a certificate signed by the Registrar certifying that the default or omission for which the order of dismissal was passed has been rectified”.

[Vide Notification No. ROC 2296/59, dated 5th November, 1959.]

Kerala.-After Order XLI, insert the following Orders namely:-

“ORDER XLIA
APPEAL TO THE HIGH COURT FROM ORIGINAL DECREES OF SUBORDINATE COURTS

1. Modification in first appeals to High Court.-The rules contained in Order XLI shall apply to appeals in the High Court of Kerala with modifications contained in this order.

2. Notice fee, etc. to accompany appeal memo.-(1) The memorandum of appeal shall be accompanied by twelve printed copies of the judgment, one of such copies being a certified copy, the prescribed fees for service of notice of appeal and the receipt of the accountant of the Court of the sum prescribed by rules of Court.

(2) Time for respondent’s appearance.-Notwithstanding anything contained in Rule 22 of Order XLI the period prescribed for entry of appearance by the respondent and filing by him of memorandum of cross-objections, if any, shall unless otherwise ordered, by thirty days from the service of notice upon him.

3. Appearance to be filed by respondent.-(1) If the respondent intends to appear and defend the appeal he shall within the period specified in the notice of appeal enter an appearance by filing in Court a memorandum of appearance.

(2) Penalty for default.-If a respondent fails to enter an appearance within the time and in the manner provided by the sub-rule above, he shall not be allowed to translate or print any part of the record.

(3) Petition for enlargement of time and procedure thereon.-Provided that a respondent may apply by petition for further time; and the Court may thereupon make such order as it thinks fit. The application shall be supported by evidence to be given on affidavit as to the reason for the applicant’s default and notice thereof shall be given to the appellant and all parties who have entered an appearance. Unless otherwise ordered the applicant shall pay the costs of all parties appearing upon the application.

4. (1) Address for service.-(1) The memorandum of appeal and the memorandum of appearance shall state an address for service within the town of Ernakulam at which service of any notice, order or process may be made on the party filing such memorandum.

(2) When party appears in person or by pleader.-If a party appears in person, the address for service may be within the local limits of the jurisdiction of the Court from whose decree the appeal is preferred:

Provided that if such party subsequently appears by a pleader, he shall state in the vakalal an address for service within the town of Ernakulam and shall give notice thereof to each party who has appeared.

(3) Service at pleader’s address.-If a party appears by a pleader, his address for service shall be that of his pleader, and all notice to the party shall be served on his pleader at that address.

5. Service by registered post.-The Court may direct that the service of a notice of appeal or other notice or process shall be made by sending the same in a registered cover prepaid for acknowledgment and addressed to the addressee for service of the party to be served, which has been filed by him in the lower Court:

Provided that, after a party has given notice of an address for service in accordance with Rule 4, service of any notice or process shall be made at such address.

6. Notice to respondents appearing separately.-If there are several respondents and all do not appear by the same pleader, they shall give notice of appearance to such of the other respondents as appear separately.

7. Procedure where record not translated and printed before hearing.-(1) If, upon a case being called on for hearing, by the Court, it appears that the record has not been translated or printed in accordance with the rules of Court, the Court may dismiss the appeal or may adjourn the hearing and direct the party in default to pay costs, or may make such order as it thinks fit.

(2) If the Court proceeds to hear the appeal, it may refuse to read or refer to any part of the record which is not included in the printed papers.

(3) When an appeal is dismissed under sub-rule (1), the appellant may apply to the Court for re-admission of the appeal; and when the Court is satisfied that there was sufficient cause for the default, it shall re-admit the appeal on such terms as to costs or otherwise as it thinks fit. (w.e.f. 20-1-1970).

8. Costs of application and of adjournment.-When costs are awarded, unless the Court otherwise orders, the costs of a party appearing upon any application before the Registrar or the Court shall be Rs. 15, and the costs of appearing when the appeal is in the daily cause list for final hearing and is adjourned shall be Rs. 30. At the request of any party the Registrar shall cause the order to be drawn up and the said to be inserted therein.

Memorandum of Objections

9. (1) Copies of memorandum of objections when to be filed.-If the acknowledgment mentioned in Rule 22 (3) of Order XLI is not filed, the respondent shall together with the memorandum of objections file so many copies thereof as there are parties affected thereby.

(2) Prescribed fees for service.-The prescribed fees for service shall be presented together with the memorandum to the Registrar.” (w.e.f. 9-6-1959)

Madras.-After Order XLI, insert the following Orders, namely:-

“ORDER XLIA
APPEALS TO THE HIGH COURT FROM ORIGINAL DECREES OF SUBORDINATE COURTS

1. The rules contained in Order XLI shall apply to appeals in the High Court of Judicature at Madras with the modification contained in this Order.

2. (1) The memorandum of appeal shall be accompanied by twelve printed copies of the judgment, one of such copies being a certified copy, the prescribed fees for service of notice of appeal and the receipt of the accountant of the Court for the sum prescribed by the Rules of Court.

(2) Notwithstanding anything contained in rule 22 of Order XLI the period prescribed for entry of appearance by the respondent and filing by him of Memorandum of Cross-Objections, if any, unless otherwise ordered, by thirty days from the service of notice upon him.

3. (1) If the respondent intends to appear and defend the appeal he shall within the period specified in the notice of appeal enter an appearance by filing in Court a memorandum of appearance.

(2) If a respondent fails to enter an appearance within the time and in the manner provided by the sub-rule above, he shall not be allowed to translate or print any part of the record:

Provided that a respondent may apply be petition for further time, and the Court may thereupon make such order as it thinks fit. The application shall be supported by evidence to be given on affidavit as to the reason for the applicant’s default, and notice thereof shall be given to the appellant and all parties who have entered an appearance. Unless otherwise ordered the applicant shall pay the costs of all parties appearing upon the application.

4. (1) The memorandum of appeal and the memorandum of appearance shall state an address for service within the City of Madras at which service of any notice, order or process may be made on the party filling such memorandum.

(2) If a party appears in person, the address for service may be within the local limits of the jurisdiction of the Court from whose decree the appeal is preferred:

Provided that if such party subsequently appears by a pleader he shall state in the Vakalatnama an address for service within the City of Madras, and shall give notice thereof to each party who has appeared.

(3) If a party appears by a pleader, his address for service shall be that of his pleader, and all notices to the party shall be served on his pleader at that address.

5. The Court may direct that service of a notice of appeal or other notice or process shall be made by sending the same in a registered cover prepaid for acknowledgement and addressed to the addressee for service of the party to be served which has been filed by him in the lower Court:

Provided that, after a party has given notice of an address for service in accordance with rule 4, service of any notice or process shall be made at such address.

6. All notices and processes, other than a notice of appeal, shall be sufficiently served if left by a party or his pleader, or by a person employed by the pleader, or by an officer of the Court, between the hours of 11 a.m. and 5 p.m. at the address for service of the party to be served.

7. Notices which may be served by a party or his pleader under rule 6, or which are sent from the officer of the Registrar, may, unless the Court otherwise directs, be sent by registered post; and the time at which the notice so posted would be delivered in the ordinary course of post shall be considered as the time of service thereof and posting thereof and posting thereof shall be a sufficient service.

8. If there are several respondents, and all do not appear by the same pleader, they shall give notice of appearance to such of the other respondents as appear separately.

9. A list of all cases in which notice is to be issued to the respondent shall be affixed to the Court notice board after the case has been registered.

10. (1) If upon a case being called on for hearing by the Court, it appears that the record has not been translated and printed in accordance with the rules of Court, the Court may hear the appeal or dismiss it, or may adjourn the hearing and direct the party in default to pay costs, or may make such order as it thinks fit.

(2) If the Court proceeds to hear the appeal, it may refuse to read or refer to any part of the record which is not included in the printed papers.

11. When costs are awarded, the costs of a party appearing upon any application before the Registrar shall be Rs. 25. At the request of any party the registrar shall cause the order to be drawn up and the said costs to be inserted therein. (Amended on 14-11-1963)

Memorandum of Objections

12. (1) If the acknowledgment mentioned in rule 22(3) of Order XLI is not filed, the respondent shall together with the memorandum of objections file so many copies thereof as there are parties affected thereby.

(2) The prescribed fees for service shall be presented together with the memorandum to the Registrar.

13. If any party or the pleader of any party to whom a memorandum of objections has been tendered has refused or neglected for three days from the date of tender to give the acknowledgement mentioned in rule 22(3) of Order XLI, the respondent may file an affidavit stating the facts and the Registrar may dispense with service of the copies mentioned in rule 12 (1).

14. Rule 31 of Order XLI shall not apply to the High Court. If judgment is given orally a shorthand note thereof shall be taken by an officer of the Court and a transcript made by him shall be signed or initialled by the Judge or by the Judges concurring therein after making such corrections as may be considered necessary.

ORDER XLIB. LETTERS PATENT APPEALS

1. The rules of Order XLIA shall apply, so far as may be, to appeals to the High Court of Madras under clause 15 of the Letters Patent of the said Court:

Provided that it shall not be necessary to file copies of the judgment and decree appealed from.

2. Notice of the appeal shall be given in manner prescribed by Order XLIA, rule or if the party to be served has appeared in person in manner prescribed by rule 5 of the said Order,”

[Vide GO No. 2128-Home (Judi), dated 18th October, 1917.]

ORDER XLII. APPEALS FROM APPELLATE DECREES

1. Procedure

The rules of Order XLI shall apply, so far as may be, to appeals from appellate decrees.

HIGH COURT AMENDMENTS

Allahabad.-In Order XLII, for rule 1, substitute the following rule, namely:-

“1. The rules of Order XLI and Order XLIA shall apply, so far as may be, to appeals from Appellate decrees, subject to the following proviso:

Every memorandum of appeal from an appellate decree shall be accompanied by a copy of the decree appealed from unless the Court sees fit to dispense with either or all of them-

(1) a copy of the judgment on which the said decree is found, –^

(2) a copy of the judgment of the Court of the first instance, and

(3) a copy of the finding of the Civil the Revenue Court, as the case may be, where an issue was remitted to such Court for decision.”

[Vide Notification No. 14186/VII-d-147, dated 22nd December, 1951.]

Calcutta.-In Order XLII, for rule 1, substitute the following rule, namely:-

“1. The rules of Order XLI shall apply, so far as may be, to appeals from appellate decrees:

Provided that every memorandum of appeal from an appellate decree shall be accompanied by a copy of the decree appealed from and also (unless the Court sees fit to dispense within any or all of them), by copies of the judgment on which the said decree is founded and of the judgment and decree of the Court of first instance.”

[Vide Notification No. 1750-G, dated 15th February, 1938.]

Gauhati.-Same as in Calcutta.

Kerala.-In Order XLII, in rule 1,-

(a) after the words “Order XLI”, insert the words “as modified by Order XLIA”.

[Vide Notification No. 1-32897/68, dated 5th January, 1970.]

(b) after rule 1, insert the following rule, namely:-

“2. Memo to be typed or printed. What to accompany memorandum.-(1) The memorandum of appeal shall be printed or type written and shall be accompanied by a certified copy of the decree and judgment of the Appellate Court and (unless the Court dispenses therewith) a certified copy of the decree and judgment of the Court of first instance.

(2) Copies of documents to be construed.-If any ground of appeal is based upon the construction of a document, a true copy of such document shall be presented with the memorandum of appeal.” (w.e.f. 9-6-1959)

Punjab.-In Order XLII, after rule 1, insert the following rule, namely:-

“2. In addition to the copies specified in Order XLI, rule 1, the memorandum of appeal shall be accompanied by a copy of the judgment of the Court of first instance, unless the Appellate Court dispenses therewith.”

[Vide Notification No. 4685-G, dated 17th October, 1919 and Notification No. 138-G, dated 19th March, 1926.]

Rajasthan.-In Order XLII, for rule 1, substitute the following rule, namely:-

“1. Procedure.-The rule of Order XLI shall apply, so far as may be, to appeals from appellate decree, subject to the following proviso;

Every memorandum of appeal from an appellate decree shall be accompanied by a copy of the decree appealed from and unless the Court sees fit to dispense with either or all them-

(1) a copy of the judgment on which the said decree is founded,

(2) a copy of the judgment of the Court of the first instance, and

(3) a copy of the finding of the Civil or Revenue Court, as the case may be, where as issue was remitted to such Court for decision.”

1[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 or 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 appelant to urge any other ground in the appeal without the leave of the Court, given in accordance with the provision of section 100.

1. Ins. by Act No. 104 of 1976 (w.e.f. 1-2-1977).

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.]

HIGH COURT AMENDMENTS

Andhra Pradesh.-Same as in Madras.

Delhi.-Same as in Punjab.

Haryana.-Same as in Punjab.

Himachal Pradesh.-Same as in Punjab.

Karnataka.-For Order XLII, substitute the following Order, namely:-

“ORDER XLII
APPEALS FROM APPELLATE DECREES

1. The Rules contained in Order XLI and Order XLIA shall apply, so far as may be, to appeals to the High Court of Mysore from appellate decrees with the modifications contained in this Order.

2. The memorandum of appeal shall be accompanied by one certified copy each of the decree and judgment of the Court of the first instance and one certified copy each of the decree and judgment of the Appellate Court.

3. If any ground of appeal is based upon the constriction of a document a copy of such document shall be presented with the memorandum of appeal, and if such document is not in the language of the Court a translation thereof or of a material portion thereof certified to be a true translation by the appellant’s Advocate shall be presented.”

Madras.-For Order XLII, substitute the following Order, namely:-

“ORDER XLII
APPEALS FROM APPELLATE DECREES

1. The rules of Order XLI and Order XLIA shall apply, so far as may be, to appeals to the High Court of Judicature at Madras from appellate decrees with the modifications contained in this Order.

2. (1) The memorandum of appeal shall be printed or typewritten and shall be accompanied by the following papers;

(2) One certified copy of the decrees of the Court of first instance and of the Appellate Court and four printed copies of each of the judgments of the said Courts, one copy of each judgment being a certified copy;

(3) If any ground of appeal is based upon the construction of a document, a printed or typewritten copy of such document shall be presented with the memorandum of appeal:

Provided that if such document is not in the English language and the appellant appears by a pleader, an English translation of the document certified by the pleader to be a correct translation shall be presented.

3.1f the appellant fails to comply with this rule, the appeal may be dismissed.” (w.e.f. 18-10-1917).

Punjab.-In Order XLII, after rule 1, insert the following, namely:-

“2. In addition to the copies specified in Order XLI, rule 1, the memorandum of appeal shall be accompanied by a copy of the judgment of the Court of first instance, unless the Appellate Court dispenses therewith”, (w.e.f. 9-6-1959)

Kerala.-After Order XLII, insert the following Order, namely:-

“ORDER XLIIA
APPEALS FROM DECREES AND ORDERS OF SINGLE JUDGE TO DIVISION BENCH OF THE HIGH COURT

Procedure.-The Rules of Orders XLI and XLIA shall apply, so far as may be, to appeals from decrees and orders of a Single Judge to a Division Bench.” (w.e.f. 9-6-1959).

ORDER XLIII. APPEALS FROM ORDERS

1. Appeals 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 1[except where the procedure specified in rule 10A of Order VII has been followed];

2* * * *

(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 pane

2* * * * *

(f) an order under rule 21 of Order XI;

2* * * * *

(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;

1[(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;

3* * * * *

(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;

4[(na) an order under rule 5 or rule 7 of Order XXXIII rejecting an application for permission to sue as an indigent persons:]

3* * * * *

(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 XXXVIII; (r) an order under rule 1, rule 2 4[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 rule 23 [or rule 23A] of Order XLI remanding a case, where an appeal would lie from the decree of the Appellate Court;

5* * * *

(w) an order under rule 4 of Order XLVII granting an application for review.

1. Ins. by Act No. 104 of 1976 (w.e.f. 1-2-1977).

2. Clauses (b), (e), (g) and (h) omitted by Act No. 104 of 1976 (w.e.f. 1-2-1977).

3. Clauses (m) (o) (v) omitted by Act No. 104 of 1976 (w.e.f. 1-2-1977).

4. Ins. by Act No. 104 of 1976 (w.e.f. 1-2-1977).

5. Clauses (m) (o) (v) omitted by Act No. 104 of 1976 (w.e.f. 1-2-1977).

HIGH COURT AMENDMENTS

Allahabad.-In Order XLIII, in rule 1, omit clauses (g), (i) and (o).

[Vide Notification No. 43/VII-d-29, dated 1st June, 1957.]

Andhra Pradesh-In Order XLIII, in rule 1,-

(i) after clause (i) insert the following clause, namely:-

“(ii) an order under rule 106 of Order XXI;”

[Vide Notification No. P Dis. 229/56, dated 2nd April, 1956.]

(ii) in clause (r), after the words and figure “rule 2”, insert the words and figures “rule 3A, rule 3B”. (w.e.f. 12-7-1962)

Bombay.-In Order XLIII, in rule 1,-

(i) in clause (r), for the words and figures “or rule 10”, substitute the words and figures v “rule 10 and rule 11”; (w.e.f. 1-11-1966)

(ii) omit clause (w).

[Vide Notification No. 1646, dated 9th March, 1926.]

Calcutta.-In Order XLIII, in rule 1, after clause (i), insert the following clause, namely:-

“(i) (a) An order under rule 57 of Order XXI, directing that an attachment shall cease or directing or omitting to direct that an attachment shall continue.”

[Vide Notification No. 3516-G, dated 3rd February, 1933.]

Gauhati.-Same as in Calcutta.

Gujarat-Same as in Bombay (ii).

Kerala.-In Order XLIII, in rule 1, same as in Madras (b). (9-6-1959)

Madras.-In Order XLIII, in rule 1,-

(a) after clause (i) insert the following clause, namely:-

“(ii) an order under rule 106 of Order XXI.” (w.e.f. 19-5-1954)

(b) in clause (s), at the end, insert the words “except an order under the proviso to sub-rule (2) of rule 4.”

[Vide P Dis. No. 60 of 1933.]

Patna.-In Order XLIII, in rule 1, after clause (i), insert the following clause, namely:-

“(ii) an Order in garnishee proceedings other than an order referred to in rule 63 H (1) of Order XXI.” (w.e.f. 7-1-1936)

1[1A. Right to challenge non-appealable orders in appeal against decree-

(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.]

1. Ins. by Act No. 104 of 1976 (w.e.f. 1-2-1977).

2. Procedure

The rules of Order XLI shall apply, so far as may be, to appeals from orders.

HIGH COURT AMENDMENTS

Allahabad.-In Order XLIII, in rule 2, after the words and figures “Order XL1”, insert the words and figures “and Order XLIA”.

[Vide Notification No. 14186/VII-d-147, dated 22nd December, 1951.]

Andhra Pradesh.-Same as in Madras.;

Karnataka.-In Order XLIII, for rule 2, substitute the following rules, namely:-

“2. The rules contained in Orders XLI and XLIA shall apply, so far as may be, to appeals from the orders specified in rule 1 and other orders of any subordinate Court from which an appeal to the High Court is allowed under the provisions of any law:

Provided that in the case of appeals against interlocutory orders made prior to decree or final order, the Court which passed the order appealed from need not send the records of the case unless an order has been made by the High Court for stay of further proceedings in that Court but send only such records as may be called by the High Court.

3. Rules contained in Order XLII shall apply, so far as may be, to appeals from appellate Orders.”

[Vide Notification No. ROC 2296/59, dated 5th Novembrer, 1959.]

Kerala.-In Order XLIII, for rule 2, substitute the following rule, namely:-

“2. The rules of Order XLI, Order XLIA and Order XLII, rule 2(2) shall apply, so far as may be, to appeals from the Orders specified in rule I and other orders of any Civil Court from which an appeal to the High Court is allowed under any provision of law:

Provided that in the case of appeals against interlocutory orders made prior to decree, the Court which passed the order appealed from shall not send the records of the case unless an order has been made for stay of further proceedings in that Court.” (w.e.f. 9-6-1959)

Madras.-In Order XLIII, for rule 2,-

(a) substitute the following rule, namely:-

“2. The rules of Order XLI and of Order XLIA shall apply, so far as may be, to appeals from the orders specified in rule 1 and other orders of any Civil Court from which an appeal to the High Court is allowed under any provision of law:

Provided that in the case of appeals against interlocutory orders made prior to decree, the Court which passed the order appealed from shall not send the records of the case unless an order has been made for stay of further proceedings in that Court.”

(b) after rule 2, insert the following rule, namely:-

“3. Appeals from Appellate Orders.-(1) The provisions of Order XLII shall apply, so far as may be, to appeals from appellate orders.

(2) A memorandum of appeal from an appellate order shall be accompanied by a certified copy of the judgment and of the order of the Court of first instance, and by a certified copy of the judgment and of the order of the Appellate Court.

(3) If any ground of appeal is based upon the construction of a document, a printed a typewritten copy of such document shall be presented with the memorandum of appeal:

Provided that, if such document is not in the English language and the appellant appears by a pleader, an English translation of the document certified by the pleader to be a correct translation shall be presented.”

[Vide P Dis. No. 788 of 1932.]

Punjab, Haryana and Chandigarh.-In Order XLIII, for rule 2, substitute the following rule, namely:-

“2. The rules of Order 41 shall apply, so far as may be, to appeals from order:

Provided that in case of appeals against interlocutory orders, the Court which passed the order appealed from shall not sent the records of the case unless summoned by the Appellate Court.” (w.e.f. 28-1-1993)

ORDER XLIV. [APPEALS BY INDIGENT PERSONS]

ORDER XLIV. 1[APPEALS BY INDIGENT PERSONS]

1. Subs. by Act No. 104 of 1976 for “PAUPER APPEALS” (w.e.f. 1-2-1977)

1. Who may appeal 1[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 2[indigent person], subject, in all matters, including the presentation of such application, to the provisions relating to suits by 3[indigent , persons], in so far as those provisions are applicable.

4* * * * *

5* * * * *

1. Subs. by Act No. 104 of 1976 “as pauper” (w.e.f. 1-2-1977)

2. Subs.by Act No. 104 of 1976 “pauper” (w.e.f. 1-2-1977)

3. Subs.by Act No. 104 of 1976 “paupers” (w.e.f. 1-2-1977)

4. Proviso omitted by Act 66 of 1956, sec. 14 (w.e.f. 1-1-1957)

5. Sub-rule (2) Omitted by Act No. 104 of 1976, (w.e.f. 1-2-1977).

HIGH COURT AMENDMENT

Andhra Pradesh–In Order XLIV, in rule 1, in sub-rule (1), insert the following proviso, namely:-

“Provided that in case where the appeal is presented to the High Court, the application for permission to appeal as pauper may be presented by the applicant in person or by his or her authorised agent or by an Advocate.” (w.e.f. 30-4-1970)

1 [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 has been paid in the first instance.

1. Subs. by Act No. 104 of 1976, sec. 90, for rule 2 (w.e.f. 1-2-1977)

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 the 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.]

HIGH COURT AMENDMENT

Allahabad.-In Order XIV, for rule 3, substitute the following rule, namely:-

“3. Inquiry as to whether applicant is an indigent person.- The inquiry into the question whether or not the applicant referred to in rule 1, 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 consider it necessary, in the circumstances of the case, that the inquiry should be held by the Court from whose decision the appeal is preferred;

Provided that if such applicant 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 made in the manner stated above.” (w.e.f. 25-4-1987)

ORDER XLV. APPEALS TO THE SUPREME COURT

ORDER XLV. APPEALS TO THE SUPREME COURT

1. “Decree” defined

In this Order, unless there is something repugnant in the subject or context, the expression “decree” shall include a final order.

2. Application to Court whose decree complained of

1[(1)] Whoever desires to appeal the Supreme Court shall apply by petition to the Court whose decree is complained of.

2[(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).]

1. Rule 2 renumbered as sub-rule (1) of that rule by Act No. 104 of 1976 (w.e.f. 1-2-1977).

2. Ins. by Act No. 104 of 1976 (w.e.f. 1-2-1977).

STATE AMENDMENT

Uttar Pradesh.-In its application to the State of Uttar Pradesh, in rule 2 after sub-rule (2) the following sub-rule 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 grant or refuse the certificate, or direct the applicant to file 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.” [U.P. Act 57 of 1976].

HIGH COURT AMENDMENTS

Andhra Pradesh.-In Order XLV, for rule 2, substitute the following rules, namely:-

“2. Application of Court whose decree or judgment complained of.-Whoever desires to appeal to the Supreme Court under clause (1) of Article 133 of the Constitution shall apply for a certificate by petition to the Court whose decree or judgment is complained of:

Provided that an application may be made orally for the purpose, immediately after the judgment had been delivered:

Provided further where the certificate has been refused on an oral application no subsequent petition for the certificate shall He.”

[Vide Andhra Pradesh Gazette, Pt. II, (R.S.), p. 132, dated 10th February, 1977.]

Bombay.-In Order XLV, in rule 2, after sub-rule (2), insert the following sub-rule, namely:-

“3. Application to Court whose decree is complained of.-(1) Whoever desires to appeal to the Supreme Court shall apply by petition to the Court whose decree is complained of.

(2) Notwithstanding anything contained in sub-rule (1) a party desiring to appeal to the Supreme Court may apply orally immediately after the pronouncement of the judgment by the Court, and the Court may grant or refuse leave to the party to appeal to the Supreme Court or direct the party to file a petition as required by sub-rule (1):

Provided, however, that if an oral application for leave under sub-rule (2) is made and rejected, no written petition under sub-rule (1) shall lie.” (w.e.f. 1-10-1983)

Madras.-In Order XLV, in rule 2, for sub-rule (!}, substitute the following sub-rule, namely:-

“(1) whoever desires to appeal to the Supreme Court, any, make an oral application to the Court whose decree is complained or, immediately after the pronouncement of the judgment and in such a case, it shall be heard and disposed of immediately, or may apply by petitions to the Court, whose decree is complained of.”

[Vide Tamil Nadu Government Gazette, Pt. III, Sec. 2, p. 136, dated 16th November, 1988.]

Patna.-In Order XLV, for rule 2, substitute the following rule, namely:-

“2. Application to Court whose judgment, decree or final order is complained of.-(1) Whoever desires to appeal to the Supreme Court may apply by petition to the Court whose judgment, decree or final order is complained of.

(2) Notwithstanding anything contained in sub-rule (!) a party desiring to appeal to the Supreme Court may apply orally immediately after the pronouncement of the judgment or final order by the Court and the Court may grant or refuse leave to the party to appeal to the Supreme Court or direct the party to file a petition as required by sub-rule (1):

Provided that if an oral application for leave under the sub-rule (2) is made and rejected, no written petition under sub-rule (1) shall lie.”

[Vide Bihar Gazette, Pt. III, p. 3, dated 11th January, 1978.]

3. Certificate as to value or fitness

1[(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 th Supreme Court.]

(2) Upon receipt of such petition, the Court shall direct notice to be served on th opposite party to show cause why the said certificate should not be granted.

1. Subs. by Act No. 49 of 1973 for sub-rule (1).

HIGH COURT AMENDMENTS

Allahabad.-In Order XLV, in rule 3, in sub-rule (2), at the end, omit full stop and insert the words “unless it thinks fit to refuse the certificate.”

[Vide Notification No. 1/VII-d-158, dated, 4th January, 1960.]

Andhra Pradesh.-In Order XLV, for rule 3, substitute the following rule, namely:-

“3. Contents of the petition.-Every such petition shall state the grounds of appeal and pray for a certificate to appeal to the Supreme Court under clause (1) of article 13 of the Constitution.”

[Vide Andhra Pradesh Gazette, Pt. II, (R.S.), p. 132, dated 10th February, 1977.]

Bombay.-In Order XLV, in rule 3, in sub-rule (2), at the end, omit the full stop and insert the words “unless it thinks fit to refuse the certificate.”

[Vide Notification No. P 1614/45, dated 26th June, 1951.]

Gujarat.-Same as in Bombay.

Kerala.-In Order XLV, in rule 3,-~

(i) for sub-rule (2), substitute the following sub-rule, namely:-

“(2) Upon receipt of such petition, the Court, after fixing a day for hearing the applicant or his pleader and hearing him, if he appears, may dismiss the petition.”

(ii) after sub-rule (2), insert sub-rule (3) as in Madhya Pradesh (b).

[Vide Notification No. Bl-3312/58, dated 7th April, 1959.]

Madhya Pradesh.-In Order XLV, in rule 3,-

(a) for sub-rule (2), substitute the following sub-rule, namely:-

“(2) Upon receipt of such petition, the Court, after sending for the record, and after fixing a day for hearing the applicant or his pleader and hearing him accordingly if he appears on that day, may dismiss the petition.”

(b) after sub-rule (2), insert the following sub-rule, namely:-

“(3) Unless the Court dismisses the petition under sub-rule (2), it shall direct notice to be served on the opposite party to show cause why the said certificate should not be granted.” (w.e.f. 16-9-1960)

Madras.-In Order XLV, in rule 3, in sub-rule (2), insert the following proviso, namely:-

“Provided that where leave to appeal is sought from a decree dismissing a proceeding in limine, notice shall not be necessary unless the Court otherwise directs.” (w.e.f. 19-6-1969)

Orissa.-In Order XLV, in rule 3, for sub-rule (2), substitute the following sub-rules, namely:-

“(2) Upon receipt of such petition, the Court may, after giving the applicant or his pleader an opportunity of being heard dismiss the petition summarily.

(3) Unless the Court dismisses the petition under sub-rule (2) it shall direct notice to be served on the opposite party to show cause why the said certificate should not be granted:

Provided that where a party has appealed through a pleader in the High Court, service of notice on such pleader either in the manner provided in this Code or by sending a copy of such notice by registered post shall be deemed to be sufficient notice to the party.” (w.e.f. 14-5-1984)

4. [Consolidation of suits.]

Rep. by the Code of Civil Procedure (Amendment Act, 1973 (49 of 1973) s. 4 (w.e.f. 29-11-1973).

5. [Remission of dispute to Court of first instance.]

Rep. by s. 4, ibid, (w.e.f. 29-11-1973).}

6. Effect of refusal of certificate

Where such certificate is refused, the petition shall be dismissed.

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.

HIGH COURT AMENDMENTS

Allahabad.-In Order XLV, in rule 7′,-

(a) in sub-rule (1), in clause (a), between the words “the respondent” and the word “, and” insert the words “except when the Government is the applicant”

(b) in sub-rule (1), in the first proviso, for the words “at the time of granting the certificate”, substitute the words “at any time before expiry of the period for furnishing security”.

[Vide Notification No. 3713-454(7), dated 20th June, 1936 and Notification No. 676/35(a)-1, dated 4th February, 1939.]

Andhra Pradesh.-In Order XLV, omit rule 7. (w.e.f. 4-8-1975)

Bombay.-In Order XLV, after rule 7 insert the following rule, namely:-

“7A. Security not to be demanded from Union or State Government or Government servant defended by Government.-No such security as is mentioned in clause (a) of sub-rule (1) of rule 7 above shall be required from the Union of India or [a State Government or where] Government has undertaken the defence of the suit, from any public officer sued in respect of an act alleged to [have been] done by him in his official capacity.” (w.e.f. 1-10-1983)

Gujarat.-In Order XLV, after rule 7, insert the following rule, namely:-

“7A- No such security as is mentioned in clause (a) of sub-rule (1) of rule 7, shall be required from the Union of India, or, where the State 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.” (w.e.f. 17-8-1961)

Kerala.-In Order XLV, in rule 7, after sub-rule (1) insert the following sub-rule, namely:-

“(2) No such security as is mentioned in rule 7(1) clause (a) shall be required from the Government or, where State Government has undertaken the defence of the suit, from any public officer and in respect of an Act purporting to be done by him in his official capacity.”

[Vide Notification No. Bl-3312/58, dated 7th April, 1959.]

Madhya Pradesh.-In Order XLV, insert rule 7A as in Gujarat.

[Vide Notification No. 3409, dated 29th June, 1943.]

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.

HIGH COURT AMENDMENTS

Andhra Pradesh.-In Order XLV, for rule 8, substitute the following rule, namely:-

“8. On receipt from the Supreme Court of the copy of the petition of appeal, the Registrar of the Court shall-

(i) cause notice of the lodgment of the petition of appeal to be served on the respondent personally or in such manner as provided for service of its own processes or as the Court may prescribe or order;

(ii) unless otherwise ordered by the Supreme Court, transmit to the Supreme Court at the expense of the appellant the original record of the case; and

(iii) as soon as notice as aforementioned is served, to send a certificate as to the date or dates on which the said notice was served.” (w.e.f. 4-8-1975)

Madras.-In Order XLV, in rule 8,-

(i) for clause (b), substitute the following clause, namely:-

“(b) give notice to such of the respondents as have entered appearance at the hearing, of the appeal in the High Court and such of the respondents who have entered appearance in pursuance of nonce issued under rule 3(2) supra,”;

(ii) in clause (c), at the end, insert the words “give notice of such transmission to the respondents specified in rule 8{b) above, and”, (w.e.f. 28-1-1959)

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.

HIGH COURT AMENDMENT

Andhra Pradesh.-In Order XLV, omit rule 9. (w.e.f. 4-8-1975)

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.

HIGH COURT AMENDMENT

Kerala.-In Order XLV, in rule 9A, in the proviso after the words “sub-rule”, for the figure “(2) ” substitute the figure “(3)”.

[Vide Notification No. Bl-3312/58, dated 7th April, 1959.]

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 except as aforesaid.

HIGH COURT AMENDMENT

Andhra Pradesh.-In Order XLV, omit rule 10. (w.e.f. 4-8-1975)

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.

HIGH COURT AMENDMENT

Andhra Pradesh.-In Order XLV, omit rule 11. (w.e.f. 4-8-1975)

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 had deposited under rule 7.

HIGH COURT AMENDMENT

Andhra Pradesh.-In Order XLV, omit rule 12. (w.e.f. 4-8-1975)

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.

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 respectiong the subject-matter of the appeal as it thinks fit.

HIGH COURT AMENDMENT

Andhra Pradesh.-In Order XLV, omit rule 14. (w.e.f. 4-8-1975)

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 Courts, 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.

1[* * *]

(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.

1. Sub-Rule (3) omitted, by A.O. 1950. HIGH COURT AMENDMENTS

Allahabad.-In Order XLV, in rule 15, for sub-rule (1), substitute the following sub-rule, namely:-

“(1) Whoever desires to obtain,-

(a) execution of any order of any Supreme Court; or,

(b) where an appeal has been dismissed by the Supreme Court for want of prosecution, an order of the Court from which the appeal to [the Supreme Court] was preferred terminating proceedings and determining the costs, shall apply to the said Court by a petition, accompanied by a certificate copy of the decree passed or order made by the Supreme Court of which execution is desired or to which the effect is to be given and a memorandum of all costs incurred in India that are claimed in pursuance thereof.”

[Vide Notification No. 1591/35(a), dated 7th April, 1928.]

Andhra Pradesh.-In Order XLV, in rule 15,-

(i) for sub-rule (1), substitute the following sub-rule, namely:-

“(1) Whoever desires to obtain execution of any appellate decree or order of the Supreme Court shall apply by petition accompanied by a certified copy of the said decree or order, to the Court of first instance.

Explanation.-The Court of first instance in this rule shall mean the Court in which the suit or proceedings was first instituted and where such Court 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.”

(ii) omit sub-rule (2);

(iii) Renumber sub-rule (4) as sub-rule (2).

[Vide Notification No. ROC No. 6842/51-B-l, dated 9th August, 1957.]

Bombay.-In Order XLV, for rule 15, substitute the following rule, namely:-

“15. Procedure to enforce order of the Supreme Court.-(1) (a) Any decree passed or order made by the Supreme Court in exercise of the appellate jurisdiction including any order as to the costs of, and incidental to, any proceedings in that Court shall be enforceable in accordance with the provisions of law for the time being in force relating to the enforcement of the decrees or orders of the Court or Tribunal from which the appeal to the Supreme Court was preferred or sought to be preferred.

(b) The costs incurred in the High Court as incidental to the Supreme Court Appeal including the costs in the application for leave to appeal to the Supreme Court shall be recoverable where awarded, by execution of the order of the High Court in the same manner in which the decree or order of the High Court from which the appeal to the Supreme Court was preferred or sought to be preferred would have been executed.

(2) 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 of 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 it had been made before the death took place.” (w.e.f. 1-10-1983)

Karnataka.-In Order XLV, in rule 15, omit sub-rules (1) and (2). (w.e.f. 30-3-1967)

Madras.-Same as in Andhra Pradesh. (w.e.f. 28-5-1958)

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.

HIGH COURT AMENDMENTS

Allahabad.-In Order XLV, after rule 16, insert the following rule, namely:-

“17. The provisions of sub-rules (1) and (2) of rule 15 and the provisions of rule 16 shall apply mutatis mutandis, to the execution of decrees or orders for costs passed by the Supreme Court in appeals from the High Court”

[Vide Notification No. 3922/VII-d 107, dated 14th August, 1948,]

Andhra Pradesh.-Same as in Madras.

Kerala.-In Order XLV, after rule 16, insert the following rule, namely:-

“16A. Appeals to Federal Court.-The provisions of sub-rules (1) and (2) of rule 15 and the provisions of rule 16 shall apply, mutatis mutandis, to the execution of decrees or orders for costs passed by the Federal Court in appeals from the High Court.”

Madhya Pradesh.-In Order XLV, insert rule 17 which is same as in Allahabad with insertion of the words “in accordance with the declaration or order made” after the words “orders for costs passed”.

[Vide Notification No. 3409, dated 20th June, 1943.]

Madras.-(1) In Order XLV, after rule 16, insert the following rule, namely:-

“16A. The provisions of sub-rules (1) and (2) of rule 15 and the provisions of rule 16 shall apply mutants mutandis to the execution of decrees or orders for costs passed in the Federal Court in appeals from the High Court.”

[Vide ROC. No. 280 of 1945.]

(2) After Order XLV, insert the following Order, namely:-

“ORDER XLVA
APPEALS TO THE SUPREME COURT

1. Decree defined.-In this Order, unless there is something repugnant in the subject or context, the expression “decree” shall include a final order.

2. Application to Court whose decree is complained of.-Whoever desires to appeal to the Supreme Court shall apply by petition to the Court whose decree is complained of.

3. Certificate as to value or fitness.-(1) Every petition shall state the grounds of appeal and pray for a certificate either that, as regards amount or value and nature, the case fulfils the requirements of section 110, or that it is otherwise a fit one for appeal to 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:

Provided that where leave to appeal is sought from a decree dismissing a proceeding in limine notice shall not be necessary unless the Court otherwise directs.

4. Consolidation of suits.-For the purpose of pecuniary valuation, suits involving substantially the same questions for determination and decided by the same judgment may be consolidated; but suits decided by separate judgments shall not be consolidated, notwithstanding that they involve substantially the same questions for determination.

5. Remission of dispute to Court of first instance.-In the event of any dispute arising between the parties as to the amount or value of the subject-matter or the suit in the Court of first instance, or as to the amount or value of the subject-matter in dispute on appeal to the Supreme Court, the Court to which a petition for a certificate is made under rule 2, may, if it thinks fit, refer such dispute for report to the Court of first instance, which last mentioned Court shall proceed to determine such amount or value and shall return its report together with the evidence to the Court by which the reference was made.

6. Effect of refusal of certificate.-Where a certificate is refused, the petition shall be dismissed.

7. Powers of Court pending appeal.-(1) Notwithstanding the grant of leave to appeal to the Supreme Court, 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 party 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 the decree appealed from or of any decree or order which the Supreme Court may make on 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 appeal, as it thinks fit by the appointment of a receiver or otherwise, till the petition for leave to appeal is disposed of or till the appeal is filed in the Supreme Court.

8. Procedure to enforce orders of the Supreme Court.-(1) whoever desires to obtain execution of any appellate decree or order of the Supreme Court shall apply by petition accompanied by a certified copy of the said decree or order to the Court of first instance.

Explanation.-The Court of first instance in this rule shall mean the Court in which the suit or proceeding was first instituted and where such Court 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 the suit.

(2) 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.

9. Appeal from order relating to execution.-The orders made by Court which executes the decree or order of the Supreme Court relating to such execution, shall be appealable in the same manner as the orders of such Court relating to the execution of its own decree.” (w.e.f. 21-4-1971 and 21-8-1974)

17. [Appeals to Federal Court].

Rep. by the Federal Court Act, 1941 (21 of 1941), s. 2

HIGH COURT AMENDMENT

Punjab and Haryana.-For Order XLV, substitute the following Order, namely:-

“ORDER XLV
APPEALS TO THE SUPREME COURT

1. “Decree defined.- In this Order, unless there is something repugnant in the subject or context, the expression “decree” shall include a final order.

2. Application to Court whose decree complained of.- Whoever desires to appeal to the Supreme Court shall apply by petition to the Court whose decree is complained of.

3.Certificate as to the 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) Union receipt of such petition, the Court shall, unless it dismisses the petition at the preliminary hearing, direct notice to be served on the opposite-party to show , cause why the said certificate should not be granted. . .

4. [Omitted]

5. [Omitted]

6. Effect of refusal of certificate.–Where such certificate is refused, the petition shall be dismissed.

7. Deposit required on grant of certificate.-(1) Where the certificate is granted the applicant shall within ninety days of the order of the Supreme Court under rule 14 (1) of the Supreme Court Rules for the time being in force or such further period not exceeding sixty days as the Court may, upon cause shown, allow from the date of the Supreme Court Order under rule 14 {!), whichever is later :

(a) deposit the amount required to defray the expense of translating, transcribing, indexing, printing and transmitting to the Supreme Court three copies 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;

(4) such other documents as the High Court may direct to be excluded.

8. Power to order further payment.- Where at any time after the admission of an appeal but before the transmission of the copy at the record to the Supreme Court 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 make, within a time to be specified by the Court, the required payment.

9. Effect to 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.

9A. Power to dispense with notice in case of deceased.- Nothing in this 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 notice under sub-rule (2) of rule 3 shall be given by affixing the same on 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 newspaper as the Court may direct.

10. 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, or the amount which he has deposited under rule 7.

11. Power 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 appeal 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 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.

12. 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 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 the original decrees.

(3) 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 hearing in the Court whose decree was complained of or at any proceeding subsequent to the decree of that Court, but such order shall have the same force and effect as if it had been made before

13. 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,”

[Vide G.S.R. CA/5/1908/S/122/73, dated 21st December, 1973, published in the Punjab Government Gazette, L.S. dated 4th January, 1974.]

ORDER XLVI. REFERENCE

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.

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.

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.

4. Costs 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.

1[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.

1. Ins. by Act 24 of 1951, sec. 2.

5. Power to alter, etc,, decree of Court making reference

Where a case is referred to the High Court under rule 1 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.

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 reason for the doubt as to the nature of the suit.

(2) On receiving the record and statement, the High Court may order the Cour 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.

HIGH COURT AMENDMENTS

Kerala.-In Order XLVI, in rule 6, in sub-rule (1), for the words “Court of Small Causes”, substitute the words “Court exercising Small Cause Jurisdiction”.

[Vide Notification No. Bl-3312/58, dated 7th April 1959.]

7. Power to District Court to submit for revision proceedings had undet mistake as to jurisdiction in small causes

(1) Where it appears to a Districl Court that a Court sub-ordinate 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 proceeding 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.

HIGH COURT AMENDMENTS

Allahabad.-In Order XLVI, after rule 7, insert the following rule, namely:-

“8. Rule 38 of Order XLI shall apply, so far as may be, to proceedings under this Order.”

[Vide Notification No. 1465/35(a)-5(4), dated 1st June, 1918.]

Bombay.-In Order XLVI, after rule 7, insert the following rule, namely:-

“8. Applicability of rule 38 of Order XLI.- Rule 38 of Order XLI shall apply, so far as may be, to proceedings under this order.” (w.e.f. 1-11-1966)

Gujarat.-Same as in Allahabad.

Kerala.-In Order XLVI, omit rule 7.

ORDER XLVII. REVIEW

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 of 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 on 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 applies for the review.

1[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.]

1. Ins. by Act No. 104 of 1976 (w.e.f. 1-2-1977).

HIGH COURT AMENDMENT

Kerala.-In Order XLVII, in rule 1, in sub-rule (1), in clause (c), for the words “Court of Small Causes”, substitute the words “Court exercising Small Cause Jurisdiction”, (w.e.f. 9-6-1959)

(ii) The discovery of new evidence on a question of fact, though is a good ground for the review of the decree of the first appellate Court, is no ground for review of the decree of the second appellate Court; Hori Lal v. Sharwan Kumar, AIR 1993 Del 85: 1993 (1) Cur CC 121.

2. [To whom applications for review may be made.]

Rep. by the Code of Civil Procedure (Amendment) Act, 1956 (66 of1956), s. 14.

3. Form of applications for review

The provisions as to the form of preferring appeals shall apply mutatis mutandis, to applications for review.

4. Application where rejected

(1) Where it appear 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.

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 continue 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.

HIGH COURT AMENDMENTS

Bombay.-In Order XLVII, for rule 5, substitute the following ruie, namely:-

“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 continue to be attached to the Court at the time when the application for a review is presented, and is not or are not precluded by absence or other cause for a period of two months next after 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:

Provided that if in the case of a decree or order passed by a Division Bench of two or more Judges of the High Court sitting at any place in the State of Maharashtra, all the said Judges are not available for sitting together at one place when the review application is ready for hearing, the application may be heard by a Division Bench of two or more Judges, at least one of whom, if available, should be the Judge who had passed the decree or order a review of which is applied for.”

[Vide Maharashtra Government Gazette, Pt. 4, ka, p. 429, dated 15th September, 1983 (w.e.f. 1-10-1983).]

Gujarat.-Same as in Bombay substituting the word “Gujarat” for the word “Maharashtra” in the proviso.

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.

7. Order of rejection not appealable. Objections to order granting application

1[(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 my 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 when 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.

1 Subs. by Act No. 104 of 1976 for sub- rule (1) w.e.f. 1-2-1977)..

8. Registry of application granted, and order for re-hearing

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.

9. Bar of certain applications

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.

HIGH COURT AMENDMENTS

Allahabad.-In Order XLVII, after rule 9, insert the following rule, namely:-

“10. Rule 38 of Order XLJ shall apply, so far as may be, to proceedings under this order.”

[Vide Notification No. 146S/35fa)-5(4), dated 1st June, 1918.]

Bombay.-(1) In Order XLVII, after rule 10, insert the following rule, namely:-

“10. Applicability of rule 38 of Order XLI.-Rule 38 of Order XLI shall apply, so far as may be, to proceedings under this Order.” (w.e.f. 1-10-29S3)

(2) After Order XLVII, insert the following Order, namely:-

“ORDER XLVIIA

1. Applicability of rule 38 of Order XLI shall apply, so far as may be, to proceedings under section 115 of this Code.”

Gujarat.-Same as in Allahabad.

ORDER XLVIII. MISCELLANEOUS

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.

HIGH COURT AMENDMENTS

Allahabad.-In Order XLVIII, in rule I, in sub-rule (1), before the words “Every process issued” prefix the words “Except as provided in Order IV, rule 1(2)”.

[Vide Notification No. 4084/35(a)-3(7), dated 24th July, 1926.]

Bombay.-In Order XLVIII, in rule 1, for sub-rule (2), substitute the following sub-rule, namely:-

“(2) Cost of service.-The Court-fee chargeable for service of the process of the Court shall, except as provided for in sub-rule (2) of rule 1 of Order IV, be paid when the process is applied for, or within such time as may be fixed by the Court.” (w.e.f. 1-10-1983)

Calcutta.-In Order, XLVIII, in rule 1, for sub-rule (2), substitute the following sub-rule, namely:-

“(2) The Court-fee chargeable for such service shall be paid when the process is applied for, or within such time, if any, as the Court may, when ordering its issue fix for the purpose.”

[Vide Notification No. 1154-G, dated 17th January, 1934.]

Gauhati.-Same as in Calcutta.^

Gujarat.-Same as in Bombay .substituting the words “other than the summons to the defendants, shall” for the words “shall, except as provided for in sub-rule (2) of rule 1 of Order IV”.

Madhya Pradesh.-In Order XLIIL in rule 1, in sub-rule (2), for the words “The Court-fee”, substitute the words “Except as provided in Order IV rule 1(2) the Court-fee”.

[Vide Notification No. 3409, dated 29th June, 1943.]

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.

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 purpose therein mentioned.

HIGH COURT AMENDMENTS

Calcutta.-In Order XLVIII, in rule 3, after the word “appendices”, insert the words “or such other forms as may be prescribed by the High Court of Judicature at Fort William in Bengal”.

[Vide Notification No. 7987-G, dated 18th April, 1935.]

Gauhati.- Same as in Calcutta.

Punjab and Haryana.-In Order XLVIII, after rule 3, insert the following rule, namely:-

“4. The provisions of rules 11 (2), 17, 18,19 and 21 of Order XLI of the Code of Civil Procedure, 1908, shall apply mutatis mutandis to civil revision petitions.”

[Vide G.S.R. 107, C.A. 5/8/S, 122/70, dated 16th October, 1970.]

ORDER XLIX . CHARTERED HIGH COURTS

1. Who may serve processes of High Court

Notice to produce documents, summonses to witnesses, and every other judicial 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.

HIGH COURT AMENDMENT

Kerala.-Omit Order XLIX. (w.e.f. 9-6-1959)

[Vide Notification No. Bl-3312/58, dated 7th April, 1959.]

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 the taking of evidence or the recording of judgments and orders by a Chartered High Court.

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) rules 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.

HIGH COURT AMENDMENTS

Bombay.-In Order XLIX,-

(i) for rule 3, substitute the following rule, namely:-

“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 19A of Order V;

(2) rule 10, clauses (b) and (c) of rule 11 and rule 14A of Order VI, ,

(3) rule 4A of Order VI;

(4) rule 3 of Order X;

(5) rule 2 of Order XVI;

(6) rules 5, 6, 8, 9, 10, 11, 12, 13, 14, 15 and 16 (so far as relate to the manner of taking evidence) of Order XVIII;

(7) rules 1 to 8 (both inclusive) of Order XX;

(8) rule 72A of Order XXI;

(9) rule 7 of Order XXXIII (so far as relates to the making of a memorandum); and

(10) rule 38 of Order XLI;

and rules 31 and 35 of Order XLI shall not apply to any such High Court in the exercise of its appellate jurisdiction.” (w.e.f. 1-11-1966)

(ii) after rule 3, insert the following rule, namely:-

“4. Where on a memorandum of appeal presented* [to the High Court] within the time prescribed for the same, the whole or any part of the fee prescribed by the law for the time being in force relating to Court-fees has not been paid, the Registrar may in his discretion allow the appellant to pay the whole or part, as the case may be, of such Court-fees [after the presentation of the memorandum of appeal, and may admit the appeal to the Register, even though the Court-fee or part of it may have been paid “”[after the time prescribed for presentation of the appeal].” (w.e.f. 1-10-1983) and *(w.e.f. 1-4-1987)

Calcutta.-In Order XLIX, in rule 3,-

(i) for the word and figures “rule 35”, substitute the words and figures “rules 12, 14, 15 and 35”.

[Vide Notification No. 6874-G, dated 5th October, 1948.]

(ii) after rule 3, insert the following rule, namely:-

“4. A Judge of the High Court may pronounce the written judgment or opinion of any other Judge of the said Court signed by him when such Judge continues to be a Judge of such Court but is prevented by absence or any other reason from pronouncing that judgment or opinion in open Court.”

[Vide Notification No. 7376-G, dated 8th August, 1940.]

Gauhati.-In Order XLIX, after rule 3, insert rule 4 as in Calcutta (ii).

Gujarat.-In Order XLIX,-

(1) for rule 3, substitute the following rule, namely:-

“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 21A or Order V; (la) rule 10, clauses (b) and (c) of rule 11 and rules 19 to 26 (both inclusive) of Order VII; (Ib) rules 11 and 12 of Order VIII;

(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;

(5a) rule 72A of Order XXI;

(6) rule 7 of Order XXXIII (so far as relates to the making of a memorandum); and

(7) rule 38 of Order XLI;

and rule 31 and 35 of Order XLI shall not apply to such High Court in the exercise of its appellate jurisdiction.”

(ii) after rule 3, insert the following rule, namely:-

“4. Where on a memorandum of appeal presented within the time prescribed for the same, the whole or any part of the fee prescribed by the law for time being in force relating to Court-fees has not been paid, the Registrar may in his discretion allow the appellant to pay the whole or part, as the case may be, of such Court-fees and may admit the appeal to the Register, even though the subsequent payment of Court-fee may have been made after the time prescribed for presentation of the appeal.”

Kerala.-Omit Order XLIX. (w.e.f. 9-6-1959)

ORDER L. PROVINCIAL SMALL CAUSE COURTS

ORDER L
PROVINCIAL SMALL CAUSE COURTS

1. Provincial Small Cause Courts

The provisions hereinafter specified 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 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, rules 5 to 12 (evidence);

Orders XLI to XLV (appeals);

Order XLVII, rules 2, 3,5,6,7 (review);

Order LI.

STATE AMENDMENT

Allahabad.-In Order L, in rule 1, in clause (b), after the words “Order XV, except so much of rule 4 as provides for the pronouncement at once of judgment”, insert the words “and rule 5”.

[Vide President Act 19 of 1973 as re-enacted by Uttar Pradesh Act 30 of 1974.]

HIGH COURT AMENDMENT

Kerala.-In Order L,-

(i) for the heading, substitute the following heading, namely:-

“SUITS TRIABLE AS SMALL CAUSES”,

(ii) in rule 1, for the first paragraph, substitute the following paragraph, namely:-

“The provisions contained here in after specified shall not extend to Civil Courts exercising small cause jurisdiction.”

(iii) in rule 1, in clause (b), omit the word and figures “Order XLI.”

ORDER LI . PRESIDENCY SMALL CAUSE COURTS

ORDER LI . PRESIDENCY SMALL CAUSE COURTS

1. Presidency Small Cause Courts

Save as provided in rules 22 and 23 o 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 no extend to any suit or proceeding in any Court of Small Causes established in the towns of Calcutta, Madras and Bombay.

HIGH COURT AMENDMENTS

Gujarat.-In Order LI, in rule 1, for the words “in the towns of Calcutta, Madras and Bombay”, substitute the words “in the cities of Ahmedabad, Bombay, Calcutta and Madras”, (w.e.f. 19-3-1962)

Kerala.-Omit Order LI. (w.e.f. 9-6-1959)

Allahabad.-After Order LI, insert the following Order, namely:-

“ORDER LII

1. Rule 38 of Order XLI shall apply, so far as may be, to proceedings under section 115 of the Code.”

[Vide Notification No. 1465/35(a)-5(4), dated 1st June, 1918.]

Gujarat.-Same as in Allahabad.

Madras.-After Order LI, insert the following Order, namely:-

“ORDER LII
LODGING OF CAVEAT

1. Any person, claiming a right to appear before the Court on the hearing of an application which is expected to be made or has been made in a suit, appeal, revision or any proceeding instituted or about to be instituted in a Court to which the Code applies, may lodge a Caveat in the Court. The Caveat shall be in the form prescribed in Appendix Dl. The Caveat shall be accompanied by- ,.

(a) as many copies of the notice of Caveat as will be required to be served on the applicant or applicants;

(b) the Court-fees prescribed for the Caveat; and

(c) the fees prescribed for service of such notice of Caveat.

2. Every Court shall maintain a Register called the Register of Caveats containing the following particulars, namely:-

(1) Serial Number.

(2) Date of presentation of Caveat.

(3) Date upto which the Caveat will remain in force.

(4) Name and address of Caveator.

(5) Address for service of the Caveator within the jurisdiction of the Courtj

(6) Name and address of the Pleader, if any, for the Caveator.

(7) The number of the proceeding, if any, on the file of the Court in which the Caveat is tiled.

(8) The number of the proceeding in the Lower Court against which further proceedings are taken or contemplated to be taken in the Appellate or Revisional Court (This will not apply to the Court of first instance).

(9) Name and address of the applicant or petitioner or the expected applicant or petitioner.

(10) Date of service on the applicant or petitioner or expected applicant or petitioner by the Caveator.

(11) Signature of the Caveator or his Pleader, if any.

3. As soon as a person lodges a Caveat as provided in rule 1 above, an entry shall be made in the Register of Caveats in the presence of the Caveator himself or his pleader, who shall sign the register aforesaid.

4. When a person makes an application for any interlocutory orders in a suit, appeal, revision or any other proceeding, he shall look into the Register of Caveats and make an endorcement in the application as to whether or not a Caveat has been entered with respect to his application as verified from the Register of Caveats.

5. As soon as the Caveator lodges a Caveat, he shall forthwith serve notice of the Caveat by registered post acknowledgement due on the person by whom the application has been made or is expected to be made, and file proof of such service.

6. Where after a Caveat has been lodged, any application is filed in a suit, appeal, revision or any other proceeding, the Court shall serve a notice of the application on the Pleader for the Caveator, if any, or on the Caveator in the manner provided for service on defendant, respondent or opposite party, of summons to appear. All provisions applicable to such summons shall apply to the service of such notice:

Provided that at the time when an application comes up for hearing, the Caveator or his Pleader takes notice, it shall not be necessary for the Court to serve a notice on the Caveator.

7. (a) In respect of the proceedings in the Subordinate Civil Courts in the State and in the appellate Jurisdiction of the High Court of Judicature at Madras Court-fee payable on the Caveat shall be that provided for in the Tamil Nadu Court-fees and Suits Valuation Act, 1955.

(b) In respect of the proceedings on the file of the original side of the High Court, the said fee shall be that provided for in the High Court-fees rules.

8. The fees for service of notice of the Caveat shall be those provided for in the Rules of the High Court, Madras, Original Side, 1956 or in the Rules of the High Court, Madras, Appellate Side, 1965 or in the Rules relating to service and execution of processes made under sub-section (1) of section 80 of the Tamil Nadu Court-Fees and Suits Valuation Act, 1955, as the case may be.

9. If the Caveat is not lodged in accordance with these Rules, it is liable to be rejected in limine.

APPENDIX D1

IN THE COURT OF …………………………………………………………..
Application……………………No …………….of……………..19…./20……

in

No…………………………………of…………………………19…./20…. .

……………………………………………………………………………..Caveator

Versus

…………………………………………………..Applicant/Petitioner or expected applicant

or petitioner

The address of the Caveator for service of notice within the jurisdiction of this Court is…….

The address of the applicant/petitioner or expected applicant/petitioner for service is……..

Let nothing be done in the above matter without notice to the Caveator. :]

The Caveator above named undertakes to forwith serve a notice of the Caveat by Registered Post with acknowledgement due on the applicant/petitioner or expected applicant/petitioner and file proof of such service.

Dated………………..

CAVEATOR”

Counsel for Caveator.

[Vide Tamil Nadu Gazette, Pt. III, Sec. 2, dated 6th August, 1980.]

APPENDIX. APPENDIX A

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 Inida 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.B. (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 19 …….. ……………. 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 …………….19……..

[If the plaintiff claims exemption from any law of limitation, say :]

 

3. The plaintiff was aminor [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 prupose of court-fees is …………….rupees.

6. The plaintiff claims …………….rupees, with interest at …………….percent, from the …………….day of …………….19 ……..

No. 2
Money Overpaid

(Title)

A.B., the above named plaintiff, states as follows :-

1. On the …… day of…. 19… 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 paid 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……… 19… …, 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 or 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 19. …. By his last will he appointed his brother, the plaintiff his executor.

[As in paras 4 and 5 of Form No. 1.]

7. 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……. 19. .. , 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 Defendant’s Request, and not Accepted

(Title)

A. B., the above-named plaintiff, states as follows:-

1. On the …… day of…… 19… , 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 …… 19… , 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…… 19…., 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 defendant 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 …… 19… ., 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. 1, 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…… 19… , and the …… day of 19… at …….plaintiff [executedsundry drawings, designs anddiagrams] 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…… 19… , 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… 19 … , until the day of …… 19 … , 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. 1.]

4. The plaintiff as executor of X. Y., claims (Relief claimed].

No. 10
On an Award

(Title)

A. B., the above-named, plaintiff, states as follows:-

1. On the …… day of…… 19 … , the plaintiff and defendant, having a difference between them concerning [a demand of the plaintiff for the price often 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…… 19… , 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…… 19… , 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…… 19… , 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 guarantee the punctual payment of the rent.

3. The rent for the month of…… 19… , 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. 1, 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…… 19. . . , the plaintiff and defendant entered into an agreement, and the original document is hereto annexed.

[Or, on the …… day of…… 19… , 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………. 19… , the plaintiff, being then the absolute owner of the property [land 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 sum agreed upon.

3. The defendant has not paid the money.
[As in paras 4 and 5 of Form No. 1, and Relief claimed.].

HIGH COURT AMENDMENT

Calcutta and Gauhati.-In Appendix A, in Form No. 13, for the word “bighas”, substitute the word “acres”.

No. 14
Not Delivering Goods Sold

(Title)

A. B., the above-named plaintiff, states as follows:-

1. On the …… day of…… 19… , the plaintiff and defendant mutually agreed that the defendant should deliver [one hundred barrels of flour] to the plaintiff on the… ..day of… 19… , and that the plaintiff should pay therefor …… 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 …… 19… , 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…… 19.. .. , 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…… 19… , 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 …… 19… , the plaintiff and defendant mutually agreed that the plaintiff should employ the defendant at an [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…… 19… , 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… 19… , he refused to serve the plaintiff as aforesaid. [As in paras 4 and 5 of Form No. I, 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…… 19… , 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 unworkmanlike 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…… 19… , the plaintiff took E.F. into his employment as a clerk.

2. In consideration thereof, on the …… day of…… 19. .. , the defendant agreed with the plaintiff that ifE.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, subject 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…… 19… , and the …… day of 19… , 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…… 19… , 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 …… 19… , during the said term, E.F., who was the lawful owner of the said house, lawfully evicted the plaintiff therefrom, and still withhold the pos- session 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. I, 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…… 19… , the plaintiff and defendant, being partners in trade under the style of A.B, and CD., 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…… 19… , [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 19… ,] 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…… 19… , 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…… 19… , 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, arid 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 time hereinafter mentioned was, possessed of certain land 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…… 19…., the defendant wrongfully fouled and polluted and 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…… 19… , 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-stock 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…… 19… , 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.)
[Ax 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…… 19… , the defendant, by cutting the bank of the stream, wrongfully divered 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. Plaintiff is, and was at the time hereinafter mentioned, 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…… 19… , 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…… 19… , 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 ex pense 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 by 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…… 19… , the plaintiff was walking south ward 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:-

l. On the …….. day of……..19… , 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…… 19… ., 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 plain of body and mind, and was prevented from 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. I, and Relief claimed.]

No. 32
Movables Wrongfully Detained

(Title)

A. B., the above-named plaintiff, states as follows:-

1. On the …… day of…… 19 …, 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…… 19… , 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.

The Schedule

No. 33
Against a Fraudulent Purchaser and His Transferee with Notice

(Title)

A. B., the above-named plaintiff, states as follows:-

1. On the …… day of…… 19… , 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].

[As in paras 4 and 5 of Form No. 1]

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…… 19… , 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…… 19… , the plaintiff paid the defendant rupees as part of the purchase-money.

4. That the said piece of ground contained in fact only [five big has].

[As in paras 4 and 5 of Form No. 1 ]

7. The plaintiff claims-

(1) …… rupees, with interest from the …….. day of…… 19… ;

(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.

[As in paras 4 and 5 of Form No. 1]

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…… 19. .. , 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.]

[As in paras 4 and 5 of Form No. 1 ]

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.

1[*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 public 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.

*Not applicable where suit is instituted by the Advocate-General.]
1. Subs. by Act 104 of 1976, Sec. 93, for paragraph 2 (w.e.f. 1.2.1977).

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 Injuction

(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…… 19… , he deposited the same for safe-keeping with the defendant.

3. On the …… day of…… 19… , 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. The 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 CD. his executor [or devised his estate in trust, etc., or died intenstate, as the case may be.]

3. The will was proved by CD. [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 CD., 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, I 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 daughter who should attain that age or marry, upon trust as to his immovable property f 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 been married.

3. The testator was at his death entitled to movable and immovable property; the defend; entered into the receipt of the rents of the immovable property and got in the movable prop ty; 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 the movable and immovable property of A.B. administered in this Court, < 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. F. 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 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. I.]

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 the 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 accruing 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. 1.]

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…… 1[an order for the balance].

1. Subs. by Act 104 of 1976 Sec. 93, for “a decree for the balance” (w.e.f. 1.2.1977)

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], 1[together with mesne profits].

1. Added by Act 104 of 1976, Sec. 93 (w.e.f. 1.2.1977).

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 referred 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…… 19… , 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…… 19… , the plaintiff Tendered rupees to the defendant, and demanded a transfer of the said property by a sufficient instrument.

3. On the …… day of…… 19… , 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, omits 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 plaint or any of them.

Limitation-The suit is barred by article …… or article ……… of the second

schedule to the 1[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 plaintiffs 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.)

1. See now the Limitation Act, 1963 (36 of 1963).

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]

1.

2.

3.

4.

5. Except as to Rs……. , same as ……

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 plaintiffs agent] on the…… day of…… 19…

8. The defendant satisfied the claim by payment after suit to the plaintiff on the …… day of 19… .

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 Suit 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

1907 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 carriage 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 Suits for Detention of Goods

1. The goods were not the property of the plaintiff.

2. The goods 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 plainiff 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 lights.]

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 the defence, and says that the acts complained 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 mortagage.

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 scheduled to the 1[Indian

Limitation Act, 1877 (15 of 1877).]

4. The following payments 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.

1. See now the Limitation Act, 1963 (36 of 1963).

 

No. 12

Defence to Suit for Redemption

1. The plaintiffs right to redeem is barred by article … of the second

schedule to the 1[Indian 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/or a time only, he should state the time and deny possession beyond what he admits.)

1. See now the Limitation Act, 1963 (36 of 1963).

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). 1. (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 contain 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……..19 …, and offered the 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 1[Indian Succession Act, 1865 (10 of 1865)] [or of the Hindu Wills Act, 1870 (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.

1. See now the Indian Succession Act, 1925 (39 of 1925).

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. APPENDIX B

APPENDIX B
PROCESS

No. 1

Summons for Disposal of Suit (O. 5, R. 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……… 19 ……. 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 ……… of…….. 19 …..

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.

HIGH COURT AMENDMENTS

Allahabad.-In Appendix B, after Form No. 1, insert the following Form, namely:-

“No. 1A

SUMMONS/NOTICE FOR SERVICE BY ADVERTISEMENT IN A NEWSPAPER
(O. V, r. 20)

(Title)

To

…………………………………………………………………………………….. (Name and address)

WHEREAS ………………………………. has instituted the above Suit/filed an application, against you for …………. you are hereby summoned to appear in this Court in person or by a pleader on the …………. day of …………. of 19…./20…., at …………. O’clock, -to answer the same, failing which the suit/application will be disposed of ex parte.

Given under may hand and the seal of the Court, this……… day of………. 19…/20…. .

Judge.”

[Vide Notification No. 527/VIII-b-9, dated 27th October, 1986.]

Andhra Pradesh.-Same as in Madras.

Bombay.-In Appendix B, in Form No. 1, insert the following notice, namely:-

“Notice.-Also take notice that in default of your filing an address for service on or before the date mentioned you are liable to have your defence stuck out.”

[Vide P. O. 102/77, dated 15th September, 1983 (w.e.f. 1-104983).]

Calcutta.-After Form No. 1, insert the following Form, namely:-

“No. 1A
SUMMONS TO DEFENDANT FOR ASCERTAINMENT
WHETHER THE SLUT WILL BE CONTESTED
(O. V, rr. 1 and 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 the suit on the day of………. 19…./20…., at O’clock in the …………. noon in order that on that day you may inform the Court whether you will or will not contest the claim either in whole or in part and in order that in the event of your deciding to contest the claim either in whole or in part, directions may be given to you as to the date upon which your written statement is to be filed and the witness or witnesses upon whose evidence you intend to rely in support of your defence are to be produced and also the document or documents upon which you intend to relay.

Take notice that, in default of your appearance on the day before mentioned the suit will be heard and determined in your absence and take further notice that in the event of your admitting the claim either in whole or in part the Court will forthwith pass judgment in accordance with such admissions.

Given under my hand and the seal of the Court this day of …………. 19…./20…. .

Judge.

Notice.-If you admit the claim either in whole or in part you should come prepared to pay into Court the money due by virtue of such admission together with the costs of the suit to avoid execution of any decree which may be passed against your person or property, or both.” (w.e.f. 25-8-1927)

Gauhati.-Same as in Calcutta.

Karnataka.-Same as in Madras, (w.e.f. 30-3-1967)

Kerala.-Same as in Madras, (w.e.f. 9-6-1959)

Madras.-In Appendix B, after Form No. 1, insert the following Form, namely:-

“No. 1A
SUMMONS FOR ASCERTAINING WHETHER AS SUIT IS CONTESTED OR NOT AND IF NOT CONTESTED FOR ITS IMMEDIATE DISPOSAL
(O. V, rr. 1 and 5)
(Title)

To

…………………………………………………….. [Name, description and place of residence]

WHEREAS ……………………………….. has instituted a suit against you …………. 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 ……….. 19…./20…., at………O’clock in the …………. noon and to state whether you contest or do not contest the claim and, if you contest, to receive directions of Court as to the date on which you have to file the written statements, the date of trial and other matters.

Take notice that in the event of the claim not being contested the suit shall be decided at once.

Take further notice that in default of your appearance on the day and hour 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 …………. 19…./20…. .

Judge.

Notice.-If you admit the claim you should pay the money into Court together with the costs of the suit, to avoide execution of the decree, which may be against your person or property or both.”

[Vide P. Dis. No. 7 of 1927.]

No. 2

Summons for Settlement of Issues (O. 5, R. 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 persons able to answer all such questions, on the ….. day of……… 19….., at ……… o’clock in the ……… noon, to answer the claim; 1[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 counter-claim, 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 counter-claim, you shall enter such documents in a list to be annexed to the written statement].

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 ……… 19….,

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 I both.

1. Subs. by Act 104 of 1976, for certain words (w.e.f. 1.2.1977).

HIGH COURT AMENDMENT

Bombay.-In Appendix B, in Form No. 2, insert the following notice, namely:-

“Notice.-Also take notice that in default of your filing an address for service on or before the date mentioned you are liable to have your defence struck out.” (w.e.f. 1-10-1983).

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……… 19… 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 of 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……. 19 ….

Judge.

HIGH COURT AMENDMENT

Bombay.-In Appendix B, in Form No. 3, insert the following notice, namely:-

Notice.-Also take notice that in default of your filing an address for service on or before the date mentioned you are liable to have your defence struck out.” (w.e.f. 1-10-1983).

1[No.4

Summons in a Summary Suit

(Order XXXVII, Rule 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 serve upon you a summons for judgment at a hearing of which you will be entitled 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 a 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……… 19…

Judge.

1. Subs, by Act 104 of 1976, for Form No. 4 (w.e.f. 1.2.1977).

HIGH COURT AMENDMENT

Bombay.-In Appendix B, for Form No. 4, substitute the following Form, namely:-

“No. 4

SUMMONS IN A SUMMARY SUIT
(O. XXXVII, 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 make an application within 30 days from the service hereof, for leave to defend the suit in default where of the plaintiff will be entitled at any time after the expiration of such 30 days to obtain a decree for any sum not exceeding the sum of Rs. …………. and the cost of the suit together with such interest, if any, as the Court may order.

Leave to defend may be obtained on an application to the Court supported by affidavit disclosing facts as may be sufficient to satisfy the Court that you are entitled to defend the suit.

Given under my hand and seal of the Court, this ……….. day of ………..19…./20…..

Judge.

Notice.-Take notice that in default of your filing an address of service along with your application for leave to defend, the said application will be liable to be rejected.”

[Vide P.O./102177, dated 15th September, 1983 (w.e.f. 1-10-1983).]

1[No. 4A

SUMMONS FOR JUDGMENT IN A SUMMARY SUIT

(Order XXXVII, Rule 3)

(Title)

In the ……… Court, at ……… suit No. ……… of 19…

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 19…, 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.

Dated the ……… day of……… 19…]

1. Ins. by Act No. 104 of 1976 (w.e.f. 1-2-1977)

HIGH COURT AMENDMENT

Bombay.-In Appendix B, omit Form 4A.

[Vide P.O. 102/77, dated 15th September, 1983 (w.e.f. 1-10-1983.]

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 the above suit against……… for……… and whereas it appears necessary that you should be added as a 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……… 19…, signify to this Court whether you consent to be so added.

Given under my hand and the seal of the Court, this ……… day of……… 19…,

Judge.

 

HIGH COURT AMENDMENT

Bombay.-In Appendix B, in Form 5, insert the following notice, namely:-

“Notice.-Also take notice that in default of your filing an address for service on or before the date mentioned you are liable to have your defence struck out.”

[Vide P. O./102/77, dated 15th September, 1983 (w.e.f. 1-10-1983).] .

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……… 19…, 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………19…, 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……… 19…,

Judge.

HIGH COURT AMENDMENT

Bombay.-In Appendix B, Forms No. 6, insert the following notice, namely:-

“Notice.-Also take notice that in default of your filing an address for service on or before the date mentioned you are liable to have your defence struck out.” (w.e.f. 1-10-1983).]

No. 7

Order for Transmission of Summons for Service in the Jurisdiction of another Court

(0.5.R.21)

(Title)

Whereas it is stated that …………………………………. defendant/witness in the above suit is at present residing in……… : It is ordered that a summons returnable on the day of ……… 19…., 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 in this Court in stamps. Dated ……… 19…

Judge.

HIGH COURT AMENDMENT

Allahabad.-In Appendix B, omit Form No. 7.

No. 8

Order for Transmission of Summons 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 herewith 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.

HIGH COURT AMENDMENTS

Andhra Pradesh.-Same as in Madras, (w.e.f, 29-8-1957)

Madras.-In Appendix B, in Form No. 10, in the heading for the words “PUBLIC SERVANT” substitute the words “PUBLIC OFFICER”.

No. 10

To Accompany Returns of Summons of Another Court

(O. 5, R. 23)

Read proceeding from the ……… forwarding……… for service on ……….in suit No. ……… of 19…, 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.

HIGH COURT AMENDMENTS

Allahabad.-In Appendix B, omit Form No. 10- (w.e.f. 24-8-1918)

Bombay.-In Appendix B, for Form No. 10, substitute the following Form, namely:-

“No. 10
TO ACCOMPANY RETURNS OF SUMMONS OF ANOTHER COURT
(O. V, r. 23)
(Title)

Read proceeding from the …………. forwarding for service on …………. in Suit No. ……….. of 19…./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.

I hereby declare that the said summons on …………. has been duly served.

Judge

Note.-This form will be applicable to process other than summons, the service of which may to be effected in the same manner.”

[Vide P.O./102/77, dated 15th September, 1983 (w.e.f. 1-10-1983}.]

Calcutta.-In Appendix B, in Form No. 10,-

(i) in the heading, after the word “SUMMONS”, insert the words “OR NOTICE”.

(ii) after the words “proof of the above having been taken by me on the oath of………”, insert the words “(or proof of the above having been duly made by the declaration of…..)”.

Gauhati.-Same as in Calcutta.

No. 11

Affidavit of Process-service 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……… 19… I received a summons/notice issued by the Court……… in Suit No. ……… of 19…, in the said Court, dated the……… day of……… 19 …, for service on ………

(3) The said ……… was at the time personally known to me, and I served the said summons/notice on him/her on the ……… day of…19, at about……… o’clock in the noon at……… by tendering a copy thereof to him/her and requiring his/her signature to the original summons/notice.

(a)

(b)

(a) Here state whether the person served, signed or refused to sign the process, and in whose presence.

(b) Signature of process-server.

or,

(3) The said …….. ………. not being personally known to me …………… accompanied me to the said summons/notice on his/her on the ……… day of………19…, at about……. ……… o’clock in the …………. noon at……………by tendering a copy thereof to him/her and requiring his /her signature to the original summons/notice.

(a)

(b)

(a) Here state whether the person served signed or refused to sign 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. 0r

(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/Affirmed by the said……. . before me this…. day of……… 19… before me this day of……………… 19 ………

Empowered under section 139 of the

Code of Civil Procedure, 1908, to administer the oath to deponents.

HIGH COURT AMENDMENT

Calcutta-In Appendix B, for Form No. 11, substitute the following Form, namely:-

“No. 11
DECLARATION OF PROCESS-SERVER TO ACCOMPANY RETURN OF A SUMMONS OF NOTICE
(O. V, r. 18)
(Title)

I……………. a process-server of this Court, declare:

(1) On the ……………. day of …………… 19…./20…., I received a summons/notice issued by the Court of…………………. in suit No……………….. of 19…./20…… in the Court dated…………… day of ………….. 19…./20…… for service on……….

(2) The said………………..was at the time personally known to me, and I served the summons /notice on him/her on the………………..day of………………19…./20…., at about…………….O’clock in the …………..noon at……….. by tendering a copy thereof to him/her and requiring his/her signature to the original summons/notice.

(a)

(b)

(a) [Here state whether the person served, signed or refused to sign the process and in whose presence].

(b) [Signature of process-server].

or,

(2) The said………………..not being personally known to me………………pointed out to me a person whom he stated to be the said………………… and I served the said summons/notice on him/her on the ………………..day of……..,…….19…./20…., at about……………..O’clock in the noon at………….by tendering a copy thereof to him/her and requiring his/her signature …………….. to the original summons/notice.

(a)

(b)

(a) [Here state whether the person served, signed or refused to sign the process and in whose presence].

(b) [Signature of process-server].

(3) The said…………….not being personally known to me………………accompanied to……………….and pointed out to me a person whom he stated to be the said………………..and I served the said summon/notice on him/her on the…………..day of………………19…. /20…. at about ………… O’clock in the………………..noon at ………… by tendering a copy thereof to him/her and requiring his/her signature to the original summons/notice.

(a)

(b)

(a) Here state whether the person served, signed or refused to sign the process, and in whose presence.

(b) [Signature of process-server.]

(3) The said………………..and the house in which he ordinarily resides being personally know to me/pointed out to me by.

I went to the said house in ……….. and there on the ………… day of ……….. 19…/20…., at………………………..O’clock in the force/after noon I did not fine and said………………..I enquiry after.

(a) neighbours

(b)

I was told that………………..had gone to…………………and would not be back till………………………

Signature of process-server or,

(3) 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/affirmed by the said……………………….before me this…………………..day of………. 19…./20…. .

Empowered under section 139 of the
Code of Civil Procedure, 1908, to
administer the oath of deponents”.
(w.e.f. 12-5-1909)

No. 12 Notice to Defendant

(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……… 19… 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……… 19…

Judge.

HIGH COURT AMENDMENTS

Andhra Pradesh.-Same as in Madras.

Madras.-In Appendix B, after Form No. 12, insert the following Form, namely:-

“No. 12A
NOTICE TO THE PROPOSED GUARDIAN DEFENDANT OF A MINOR
(O. XXXII, rr. 3 and 4)
(Title)

To

……………………….[Name, description and place of residence of proposed guardian.]

Take notice X plaintiff/appellant in …………….has presented a petition to the Court praying that you be appointed guardian ad litem to the minor……………. defendant(s)/respondents(s) and that the same will be heard on the day…,………19…./20….

2. The affidavit of X has been filed in support of this application.

3. If you are willing to act as guardian for the said defendants(s)/respondents(s) you are required to sign (or affix your mark to) the declaration on the back of this notice.

4. In the event of your failure to signify your express consent in manner indicated above, take further notice that the Court may proceed under Order XXXII, rule 4, Code of Civil Procedure, to appoint some other suitable person or one of its officers as guardian ad litem of defendants{s)/respondents(s) the minor aforesaid.

Dated the day of……………… 19…./20…. .

(Signed)

(To be printed on the reverse).

I hereby acknowledge receipt of a duplicate of this notice and consent to act as guardian of the minor respondent(s)/defendants) therein mentioned.

(Signed) Y. Z.”

Witnesses:

1.

2.

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 ……… 19 …, 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……… 19…

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.

HIGH COURT AMENDMENTS

Karnataka.-Same as in Kerala.

Kerala.-(i) Same as in Madras (i).

(ii) In Appendix B, after Form No. 13, insert the following Form, namely:-

“No. 13A
CERTIFICATE OF ATTENDANCE TO AN OFFICER OF GOVERNMENT SUMMONED AS A WITNESS IN A SUIT TO WHICH THE GOVERNMENT IS A PARTY
(O. XVI, r. 4A)

(Cause Title)

This is to certify that …………………….. (name) ………………………. (designation) being a Government servant from the State of…………..(name)……………..was summoned to give evidence in his official capacity on behalf of the plain tiff/defendant in the above suit/matter and was in attendance in this Court from the……………day of………….to the…………..day of……..19.,../20…., (inclusive) and that a sum of Rupees………….has been paid into Court by the plaintiff defendant towards his travelling and subsistence for…………day according to the scale prescribed by the Government of the State of…………(name) and that the said amount has been/will be remitted to the Government Treasury at…………to be credited to Government under the head “XXI (e) (ii) Administration of Justice……………Miscellaneous…….other Items.”

Dated……………….the day of……….19…./20…. .

Presiding Judge or .5
Chief Ministerial Officer.”
(w.e.f. 9-6-1959)

Madras.-In Appendix B, in Form 13,-

(i) in Notice (1), at the end, insert the following words, namely:-

“If the document you are summoned to produce is an entry in a letter book or a shop book or other account in current use, and you are desirous of receiving back the document, you may furnish along with the document a copy of the entry.”

(ii) after Form 13, insert the following Form, namely:-

“No. 13A
CERTIFICATE OF ATTENDANCE TO AN OFFICER OF GOVERNMENT SUMMONS AS A WITNESS IN A SUIT TO WHICH THE GOVERNMENT IS A PARTY
(O. XVI, r. 4A)
(Cause Title)

This is to certify that……………(Name)……………(designation) being a servant of the Government of India/of the Government of (name of State)………. was summoned to give evidence in his official capacity on behalf of the plaintiff/defendant………….in the above………… and was in attendance in this Court from the ………. day of……….to the……….day of……….19…./ 20…., ‘(inclusive)’ and that a sum of Rupees……………has been paid into Court by the plaintiff/ defendant ……………towards his travelling and subsistence allowance for……………days according to the scale prescribed by Government of India/Government of (name of State) and that the said amount…………… has been/will be……….. remitted to the Government Treasury at………to be credited to Government under the head XXI-D……… Miscellaneous Fees and dated the……….day of………..19…./20….

Presiding Judge
or Chief Ministerial Officer.”
(w.e.f. 2-3-1942 and 28-5-1958)

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…………… 19 ………. 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…….19…….

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… ………… 19 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…….. 19.. ….

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…….. 19 …..

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 19… 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……… 19…

Judge.

HIGH COURT AMENDMENT

Kerala.-In Appendix B, in Form No. 17, for the word “Bailiff”, substitute the word “Amin”.

No. 18

Warrant 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 ……… to ……… give evidence (or to produce a document), on the……… day of……… 19…; 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……… 19…

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……… can not give such evidence (or produce such document); and whereas the Court has called upon the said……… to give security for his appearance on the………….. day of……. 19. . . , 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 ……… 19….

Given under my hand and the seal of the Court, this ……… day of……… 19…

Judge.

HIGH COURT AMENDMENT

Allahabad.-In Appendix B, after Form No. 19, insert the following Form, namely:-

“No. 20 APPLICATION FOR ISSUE OF SUMMONS TO A PARTY OR WITNESS No. of Suit

Name of parties
In the Court of the
Date fixed for hearing

Number of witnesses to be summoned Name and full address of each person to be summoned Rank or occupation Distance of residence from Court Cash paid for Name and address of person to whom unexpended travelling expenses and diet money should be returned
Rail Road Travelling expenses Diet expenses
1 2 3 4 5 6

APPENDIX. APPENDIX C

APPENDIX C

DISCOVERY, INSPECTION AND ADMISSION

No. 1

Order for Delivery of Interrogatories

(O. 11, R.I)

In the Court of……… Civil Suit No…….. of……… 19 ……… A.B. …………………………….. …. Plaintiff,

against

C. D. E. F. and G. H ………………………….. Defendants.

Upon hearing……… and upon reading the affidavit of……… filed the ……. .. day of… 19………; 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 CD.] 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 interrogations for his examination by the above-named plaintiff.

In answer to the said interrogatories, I, the above-named E.F., make oath and say as follow:-

1. Enter answers to interrogatories in paragraphs numbered consecutively.

2.

3. object to answer the interrogatories numbered on the ground that [state grounds of objection].

No. 4
Order for Affidavit as to Documents

(O. 11, R. 12)

(Title as in No. 1, supra)

Upon hearing ……… ; It is ordered that the …. do within ……… days from 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:-

1.1 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.

2.1 object to produce the said documents set forth in the second part of the first schedule hereto [state grounds of objection].

3.1 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. Accordingly 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 …….. 19… 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 libery to inspect and persue the documents so produced, and to make notes 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 that. …….. day of……… 19…].

[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……… 19… except the documents numbered in that notice] at [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……… 19… 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 document 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 [or 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 plain tiff] 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 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 (General Form)

(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 of 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. APPENDIX D

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……… 19…

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. of exhibits Pleader’s fee
4. Pleader’s fee on Rs. Subsistence for witnesses
5. Subsistence for witnesses Service of process
6. Commission fee Commissioner’s fee
7. Service of process
Total Total

HIGH COURT AMENDMENTS

Andhra Pradesh-Same as in Madras.

Calcutta.-In Appendix D, in Form No. 1, under the head “Costs of suit”, for table, substitute the following table, namely:-

Plaintiff Amount Defendant Amount
Rs. A. P. Rs. A. P.
1 Stamp for plaint. 1 Stamp for power.
2 Stamp for power. 2 Stamp for petitions and affidavits.
3 Stamp for petitions and affidavits. 3 Costs of exhibits including copies made under the Banker’s Books Evidence Act, 1891.
4 Costs of exhibits including copies made under the Banker’s Books Evidence Act, 1891 4 Pleader’s fee.
5 Pleader’s fee on 5 Subsistence and travelling allowances of witness (including those of party, if allowed by Judge).
6 Rs. Subsistence and travelling allowance of witnesses (including those of party, if allowed by Judge). 6 Process fee.
7 Process fee. 7 Commissioner’s fees
8 Commissioner’s fees 8 Demi-paper.
9 Demi-paper 9 Costs of transmission of records.
10 Cost of transmission of records. 10 Other costs allowed under the Code and General Rules and Orders.
11 Other costs allowed under the Code and General Rules and Orders. 11 Adjournment costs not paid in case (to be deducted or added as the case may be).
12 Adjournment costs not paid in case (to be added or deducted as the case may be)
Total Total

Gauhati.-Same as in Calcutta.

Madras.-In Appendix D, in Form 1, under the head “Costs of Suit”,-

(i) under the heading “Plaintiff”, after item 7, insert the following item, namely:- ”

8. Fee for preparation of process”

(ii) under the heading “Defendant”, in item 3, after the word “fee”, insert the words “on Rs….”;

(iii) under the heading “Defendant”, after item 6, insert the following item namely:- “Fee for preparation of process.” ,

Orissa.-Same as in Patna.

Patna.-In Appendix D, in the Form No. 1, under the head “Costs of Suit”, for table substitute the following table, namely:-

Plaintiff Amount Defendant Amount
Rs. A. P. Rs. A. P.
1 Stamp for plaint. 1 Stamp for power.
2 Stamp for power. 2 Stamp for petition or affidavit.
3 Stamp for petition affidavit. 3 Costs for exhibits.
4 Costs for exhibits. 4 Pleader’s fee.
5 Pleader’s fee on Rs. 5 Subsistence –
6 Subsistence – (a) for defendant or his agent.
(a) for plaintiff or his agent. (b) for witnesses.
(b) for witnesses. 6 Commissioner’s fee.
7 Commissioner’s fee. 7 Service of process.
8 Service for process. 8 Copying or typing charge.
9 Copying or typing charge.
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 cost 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…. 19 … 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. of exhibits Pleader’s fee
4. Pleader’s fee on Rs. Subsistence for witnesses
5. Subsistence for witnesses Service of process
6. Commission fee Commissioner’s fee
7. Service of process
Total Total

HIGH COURT AMENDMENTS

Andhra Pradesh.-Same as in Madras Calcutta.-In Appendix D in Form No. 2 under the head “Costs of Suit”, for table substitute the following table, namely:-

Plaintiff Amount Defendant Amount
Rs. A. P. Rs. A. P.
1 Stamp for plaint. 1 Stamp for power.
2 Stamp for power. 2 Stamp for petitions and affidavits.
3 Stamp for petitions and affidavits. 3 Costs of exhibits including copies made under the Banker’s Books Evidence Act, 1891.
4 Costs of exhibits including copies made under the Banker’s Books Evidence Act, 1891 4 Pleader’s fee.
5 Pleader’s fee on 5 Subsistence and travelling allowances of witness (including those of party, if allowed by Judge).
6 Rs. Subsistence and travelling allowance of witnesses (including those of party, if allowed by Judge). 6 Process fee.
7 Process fee. 7 Commissioner’s fees
8 Commissioner’s fees 8 Demi-paper.
9 Demi-paper 9 Costs of transmission of records.
10 Cost of transmission of records. 10 Other costs allowed under the Code and General Rules and Orders.
11 Other costs allowed under the Code and General Rules and Orders. 11 Adjournment costs not paid in case (to be deducted or added as the case may be).
12 Adjournment costs not paid in case (to be added or deducted as the case may be)
Total Total

Madras.-In Appendix D, in Form 2, under the head “Costs of Suit”,-

(i) under the heading “Plaintiff”, after item 7, insert the following item, namely:- ”

8. Fee for preparation of process”

(ii) under the heading “Defendant”, in item 3, after the word “fee”, insert

the words “on Rs….”;

(iii) under the heading “Defendant”, after item 6, insert the following item, namely:-

“Fee for preparation of process.”

Gauhati.-Same as in Calcutta.

No. 3

Preliminary Decree for Foreclosure

(Order XXXIV, Rule 2-Where accounts are directed to be taken.)

(Title)

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 adj udged 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 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

HIGH COURT AMENDMENT

Kerala.-In Appendix D, omit Form No. 3

[Vide Kerala Gazette No. 3. Pt. III, G-347/S, dated 15th January, 1974.]

No.3A

Preliminary Decree for Foreclosure .

(Order XXXIV, Rule 2,-Where the Court declares the amount due)

(Title)

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 incured 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 for…….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, 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 if 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, of 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

HIGH COURT AMENDMENT

Kerala.-In Appendix D. omit No. 3A.

[Vide Kerala Gazette No. 3, Pt. III, G-347/S, dated 15th January, 1974.]

No. 4

Final Decree for Foreclosusre

(Order XXXIV, Rule 3.)

(Title)

Upon reading the preliminary decree 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 had 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; 1[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.

1.Words not required to be deleted.

Schedule

(Description of the Mortgaged Property).]

HIGH COURT AMENDMENT

Kerala.-In Appendix D, for Form No. 4 substitute the following Form, Namely:-

“No. 4

DECREE FOR FORECLOSURE

(Order XXXIV, Rule 2.)

(Title)

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 cost 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 cost of this suit award 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 day up to which time for payment may be extended by the Court of the said sum of Rs. ………. .

(ii) that, no such payment and on payment thereafter before such date as the Court may fix, or such amount, with interest of any, 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 7 of Order XXXIV of the First Schedule to the Code of Civil Procedure, Act V 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 all encumbrance 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 of 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 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 described in the schedule annexed hereto (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 and that the whole of the liability whatsoever of the defendant upto the date mentioned in (2) (i) arising from the said mortgage mentioned in the plaint or from this suit is hereby discharged and extinguished.

Schedule

(Description of the Mortgaged Property).”

[Vide Kerala Gazette No. 3, Pt. III, G-347/S, dated 15th January, 1974.].

No. 5

Preliminary Decree for Sale

(Order XXXIV, Rule 4-Where accounts are directed to be taken)

(Title)

This suit coming on this……day, etc.; It is hereby ordered and decree that it be referred to 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 percent, 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 se 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 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 order 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 shdll 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 XXXFV 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 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 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 order 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.

HIGH COURT AMENDMENT

Kerala.-In Appendix D, omit Form No. 5. [Vide Kerala Gazette No. 3, Pt III, G-347/S, dated 15th January, 1974.]

No. 5A

Preliminary Decree for Sale

(Order XXXIV, Rule 4,-When the Court declares the amount due)

(Title)

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 cost, charges and expenses as may be payable under rule 10, together with such subsequent interest as may be payable under rule 11, of Order XXXTV 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 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 for the sale of the mortgaged-property; and on such application being made, the mortgaged property or a sufficeint 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 of 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 XXXTV 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 for 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

HIGH COURT AMENDMENT

Kerala.-In Appendix D, omit Form No. 5A.

[Vide Kerala Gazette No. 3, Pt. III, G-347/S, dated 15th January, 1974.]

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 decreed 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.

HIGH COURT AMENDMENT

Kerala.-In Appendix D, for Form No. 6, substitute the following Form, namely:-

“No. 6

DECREE FOR SALE

(Order XXXIV, rule 3)

(Title)

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, no such payment and on payment thereafter before such date as the Court may fix, of such amount, with interest, if any, 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 7 of Order XXXIV, of the First Schedule to the Code of Civil Procedure, (Act V 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 reconvey or re-transfer the said property free from the said mortgage and clear of and all encumbrances 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 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 mortgaged property described in the schedule annexed hereto or a sufficient part thereof be sold, and that for the purpose 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 deducting therefrom the expenses of the sale) in payment of the amount payable to the plaintiff under this decree and in payment of any amount, with interest, if any, which the Court may have adjudged due to the plaintiff in respect of such costs of the suit and such costs, charges and expenses as may be payable under rule 7 of Order XXXIV, of the First Schedule to the Code of Civil Procedure (Act V of 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 decree that, if the money realised by such sale shall not be sufficient for payment in full of the amount payable to the plaintiff as aforesaid, the balance, if legally recoverable from the defendant otherwise than out of the property sold, be paid by the defendant personally.

Schedule

Description of the mortgaged property”.

[Vide Kerala Gazette No. 3, Pt. III, G-347/S, dated 15th January, 1974.]

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)

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 properly 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 rate, at nine per cen. 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 term of the mortgage-deed.

2. It is hereby further ordered and decreed that any amount received under clause (ii) or adjudged due under caluse (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 conveninent 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 to 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 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.

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 otherswise 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 a Decree for Sale is Passed

(Order XXXIV, Rule 7.-Where accounts are directed to be taken)

(Title)

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 payble 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 upto 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 ommission 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 mortgaged-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, 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 iricumbrances 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 purpose 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.

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 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 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 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

HIGH COURT AMENDMENT

Kerala.-In Appendix D, omit Form No 7A. [Vide Kerala Gazette No. 3, Pt III, G-347/S, dated 15th January, 1974.]

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)

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 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 decrees 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

HIGH COURT AMENDMENT

Kerala.-In Appendix D, omit Form No. 7B.

[Vide Kerala Gazette No. 3, Pt. III, G-347/S, dated 15th January, 1974.]

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)

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 the 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 cf the First Schedule to the Code of Civil Procedure, 1908, the defendant shall bring into Court all documents in his possessioi or power relating to the mortgaged property in the plaint mentioned, and all such document shall be delivered over to the plaintiff or such person as he appoints, and the defendant shall if so required, reconvey or re-transfer the said property to the plaintiff free from the sai mortgage and clear of and from all incumbrances created by the defendant or any perso claiming under him or any person under whom he claims and shall, if so required, deliver u 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 aforesaii the defendant may apply to the Court for a final decree for the sale of the mortgaged propert; and on such application being made, the mortgaged property or a sufficient part thereof she be directed to be sold; and for the purposes of such sale the defendant shall produce befo the Court or such officer as it appoints all documents in his possession or power relating the mortgaged property.

4. And it is hereby further ordered and decreed that the money realised by such ss shall be paid into Court and shall be duly applied (after deduction therefrom of the e penses of the sale) in payment of the amount payment of any amount which the Coi may adjudge due to the defendant in respect of such costs of the suit and such costs, ch; ges and expenses as may be payable under rule 10, together with such subsequent inter as may be payable under rule 11, of Order XXXIV of the First Schedule to the Code Civil Procedure, 1908, and that the balance, if any, shall be paid to the plaintiff or otl persons entitled to the same.

5. And it is hereby further ordered and decreed that, if the money realised by such s shall not be sufficient for the payment in full of the amount payable to the defendan aforesaid, the defendant shall be at liberty (where such remedy is open to him under the tei of the mortgage and is not barred by any law for the time being in force) to apply for a perse decree against the plaintiff for the amount of the balance; and that the parties are at libert apply to the Court from time to time as they may have occasion, and on such applicatio otherwise the Court may give such directions as it thinks fit.

Schedule

Description of the mortgaged property

HIGH COURT AMENDMENT

Kerala.-In Appendix D, omit Form No. 7C.

[Vide Kerala Gazette No. 3, Pt. III, G-347/S, dated 15th January, 1974.]

No. 7D

Final Decree for Foreclosure in a Redemption Suit on Default of Payment by Mortgagor

(Order XXXIV, Rule 8)

(Title)

Upon reading the preliminary decree in this suit on the…………… day of…. …… and further orders (if any) dated the…………… day of…………… the application of the defendant dated the…………… day of…………… for a decree and after hearing the parties, and it appearing that the payment as directed by the decree and orders has not been made by the plaintiff or any person on his behalf or any person entitled to redeem the mortgage ;

It is hereby ordered and decreed that the plaintiff and all person claiming through or 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 1[and (if the plaintiff be in possession of the said mortgaged property) that the plaintiff shall deliver to the defendant 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 plaintiff up to this day arising from the said mortgage mentioned in the plaint or from this suit is hereby discharge and extinguished.

1 Words not required to be deleted.

HIGH COURT AMENDMENT

Kerala.-In Appendix D, for Form No. 7D, substitute the following Form, namely:- s ”

No. 7D

DECREE FOR REDEMPTION WHERE ON DEFAULT OF PAYMENT BY MORTGAGOR, A DECREE FOR FORECLOSURE IS PASSED

(Order XXXIV, rule 4)

(Title)

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 upto 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 upto which time for payment may by 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, with interest, if any, as the Court may adjudge due in respect of such costs as the suit and such costs, charges and expenses as may be payable under rule 7 of Order XXXIV, of the First Schedule to the Code of Civil Procedure, Act V 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 encumbrances created by the defendant or any person claiming under him or any person under whom he claims and from all liabilities whatsoever arising from the mortgage or from 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 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 described in the schedule annexed hereto and (if the plaintiff 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; and that the whole of the liability whatsoever of the plaintiff upto the date mentioned in (2) (i) arising from the said mortgage mentioned in the plaint or from this suit is hereby discharged and extinguished.

Schedule

(Description of the mortgaged property).”

[Vide Kerala Gazette No. 3, Pt. III, G-347/S, dated 15th January, 1974.]

No.7E

Final Decree for Sale in a Redemption on Suit on Default of Payment by Mortgagor (Order XXXIV, Rule 8)

(Title)

Upon reading the preliminary decree passed 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 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 10, 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 person entitled to receive the same.

HIGH COURT AMENDMENT

Kerala.- In Appendix D, for Form No. 7E, substitute the following Form, namely:- ”

No, 7E

DEFENCE FOR REDEMTION WHERE ON DEFAULT OF PAYMENT BY MORTGAGOR A DECREE FOR SALE IS PASSED

(Order XXXIV, rule 4)

(Title)

This suit coming on this ………day, etc. it is hereby declared that the amount due to 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 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 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 with interest, if any, 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 7, of Order XXXIV of the First Schedule to the Code of Civil Procedure, (Act V of 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 to the plaintiff free from the said mortgage and clear of from all encumbrances 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 peaceable possession of the said property.

3. And it is hereby further ordered and decreed that, in default of payment as aforesaid, the mortgaged property described in the schedule annexed hereto or a sufficient part thereof be sold, and that for the purpose 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 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 have been passed in this suit and in payment of any amount with interest, if any, which the Court may have adjudged due to the defendant for such costs of the suit including the costs of this application and such costs, charges and expenses as may be payable under rule 7 of Order XXXIV of the First Schedule to the Code of Civil Procedure, (Act V of 1908) and that the balance, if any, shall be paid to the plaintiff 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 for payment in full of the amount payable to the defendant as aforesaid the balance if legally recoverable from the plaintiff otherwise than out of the property sold, be paid by the plaintiff personally.

Schedule

(Description of the mortgaged property).

[Vide Kerala Gazette No. 3, Pt. III, G-347/S, dated 15th January, 1974.]

No.7F

Final Decree in a Suit for Foreclosure, Sale or Redemption where the Mortgagor Pays the Amount of the Decree

(Order XXXIV, Rules 3, 5 and 8)

(Title)

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 (o 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 1[or, as the case may be,……… who has redeemed the property] or an acknowledgment 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. And it is hereby further ordered and decreed that, upon the mortgagee executing the deed of re-conveyance or acknowledgment 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 1[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 acknowledgment in the officer 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 1[or such person as aforesaid who has made the payment.]

1. Words not required to be deleted.

HIGH COURT AMENDMENT

Kerala.-In Appendix D, omit Form No. 7F.

[Vide Kerala Gazette No. 3, Pt. III, G-347/S, dated 15th January, 1974.]

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 of 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.

HIGH COURT AMENDMENT

Kerala.-In Appendix D, omit Form No. 8.

[Vide Kerala Gazette No. 3, Pt. III, G-347/S, dated 15th January, 1974.]

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)

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 the 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 1[or (if there are several subsequent mortgagees) that the several parties hereto are entitle 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 be defendant or either of them in the manner prescribed in clause

(i)(a) and on payment thereafter before such date as the Court may fix and such expenses as may be payable under rule 10, together with such subsequent interest as may be payable shall bring into Court all documents in his possession or power relating to the mortgaged property in the plaint mentioned, and shall 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 mortgagee 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) 1[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) 1[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) 1[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.

1. Words not required to be deleted.

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 plaintiffs 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)- 1[(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 1[(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 plaintiffs mortgage or from the mortgage of defendant No. 2 or from this suit shall be deemed to have been discharged and extinguished.

1. Words not required to be deleted.

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 plaintiffs 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 1, 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 plaintiffs 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.

1. Words not required to be deleted.

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

HIGH COURT AMENDMENT

Kerala.-In Appendix D, for Form No. 9, substitute the following Form, namely:- ”

No. 9

DECREE FOR FORECLOSURE OF SALE

Plaintiff……………………………………………………………………………………………………. 1st Mortgagee

Versus

Defendant No.1 …………………………………………………………. Mortgagor

Defendant No.2 …………………………………………………………… 2nd Mortgagor

(Order XXXIV, rules 2 and 3)

(Title)

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 ………… in the sum of Rs …………… for principal, the sum of Rs…………. for interest on the sale 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 the sum of Rs ……………… for the costs of this suit awarded to the plaintiff, making in all the sum of Rs ……………..

(Similar declaration 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 of (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 defendants 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, with interest if any 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 7 of Order XXXIV of the First Schedule to the Code of Civil Procedure (Act V 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 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 encumbrances 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. I 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 ordered and decreed, that in default of payment as aforesaid of the amount due to the plaintiff:-

(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 form 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 the Court or such officer as it appoints, all documents in his possession or power relating to the mortgaged property; and

(iii) [In cases 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 deducting therefrom 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 after decree and in payment of amount with interest, if any, which the Court may have adjudged due to the plaintiff in respect of such costs or this suit and such costs, charges and expenses as may be payable under rule 7 of Order XXXIV of the First Schedule to the Code of Civil Procedure (Act V of 1908) and that the balance, if any, shall be applied in payment of the amount due to defendant No 2 and that, if any further 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 sales shall not be sufficient for payment in full of the amount due to the plaintiff and defendant No 1 otherwise than out of the property sold be paid by the defendant No. 1 personally to the plaintiff or x’ defendant No. 2 or both of them, as the case may be.

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 9fi adjudged due to plaintiff, but defendant No. 1 makes default in the payment of the said amount defendant No. 2 shall be entitled to keep the plaintiff’s mortgage alive lt. for his benefit, and he shall be entitled to benefits similar to those conferred upon 9f;: the plaintiff as per 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) (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 whole of the liability of defendant No. 1 arising from the plaintiffs 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 deducting therefrom 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 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 after decree and in payment of the amount with interest, if any, which the Court may have adjudged due in respect of such costs of the suit and such costs, charges and expenses as may be payable to defendant No. 2 under rule 7 of Order XXXIV of the First Schedule to the Code of Civil Procedure (Act V of 1908} and that the further 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, the balance, if legally recoverable from defendant No. 1 otherwise than out of the property sold, be paid by the defendant No. 1 personally to defendant No. 2.

Schedule

(Description of the mortgaged property).”

[Vide Kerala Gazette No. 3, Pt. III, G-347/S, dated 15th January, 1974.]

No. 10

Preliminary Decree for Redemption of Prior Mortgage and Foreclosure of Sale on Subsequent Mortgage

[Plaintiff. ……………………………. 1st Mortgagee,

vs

Defendant No. 1 …………………………… Mortgagor

Defendant No. 2 ……………………….. 2nd Mortgagee.]

(Order XXXIV, rules 2,4 and 7)

(Title)

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) property 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 1[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 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 been 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 dale 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 and 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 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, or 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 has made the payment), or to such person as he appoints, and defendant No. 2 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 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 to 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 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 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 so required, deliver to the defendant No. 2 quiet and peaceable possession of the said property; or

(ii) 1[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 or such officer as it appoints, all documents in his possession or power relating to the mortgaged property; and

(iii) 1[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 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 the plaintiff under rule 10, together with such subsequent interest as may be payable under rule 11, or 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 the plaintiff and that, if any balance be left, it shall be paid to 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 a final decree (in the same manner as the defendant No. 2 might have done under clause 4 above)-

1[(i) that defendant No.l 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

1[(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 mortgage 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 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 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 be 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 the 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.

1. Words not required to be deleted.

Schedule

Description of the mortgaged property

HIGH COURT AMENDMENT

Kerala.-In Appendix D, for Form No. 10, substitute the following Form, namely;- ”

No. 10

DECREE FOR REDEMPTION OF PRIOR MORTGAGE AND FORECLOSURE OR SALE ON SUBSEQUENT MORTGAGE [Plaintiff…………………………………………………………………………. 2nd Mortgagee Versus

Defendant No. 1 ………………………………………………. Mortgagor

Defendant No. 2 …………………………………………………….. 1st Mortgagee] (Order XXXIV, rules 2, 3 and 4)

(Title)

The suit coming on this …… day etc., it is hereby declared that the amount due to defendant No. 2 on the mortgage 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 of (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 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 been extended by the Court the said sum of Rs. ………………. due to defendant No. 2; and

(b) The 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 and 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, with interest, if any, 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 7 of Order XXXIV of the First Schedule to the Code of Civil Procedure (Act V of 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 delivered over to the plaintiff or defendant No. 1 (whoever has made the payment); or to such person as he appoints, and defendant No. 2 shall, if so required, re-convey or re-transfer the said property free from the said mortgage and 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 also free from all liabilities 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 to 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.

(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 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 so 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 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 deducting therefrom the expenses of the sale) in payment of the amount payable to defendant No. 2 under the decree and any further orders that may have been passed after decree and in payment of the amount with interest, if any, which the Court may have adjudged due to defendant No. 2 in respect of such costs of the suit and such costs, charges and expenses as may be payable to the plaintiff under rule 7 of Order XXXIV of the First Schedule to the Code of Civil Procedure (Act V of 1908) and that the balance, if any, shall be applied in payment of the amount due to the plaintiff, and that, if any further balance be left, it shall be paid to defendant No. 1 or other person 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, the balance, if legally recoverable otherwise than out of the property sold, be personally paid by defendant No. 1 to defendant No. 2 or the plaintiff or both of them, as the case may be.

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 entitled to keep defendant No. 2’s mortgage alive for his benefit and he shall be entitled to benefits similar to those conferred upon defendant No. 2 as per clause 4 above.

(i) (that the defendant No. 1 shall thenceforth stand absolutely debarred and foreclosed of and from all rights 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) (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 whole of the liability of defendant No. 1 arising from the plaintiff’s mortgage and from the mortgage of defendant No. 2 or from this 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 only 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 costs of the suit in connection therewith, 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 amount and any further orders that may be passed after decree and in payment of the amount with interest if any, which the Court may have adjudged due in respect of such costs of the suit and such costs, charges and expenses as may be payable to the plaintiff under rule 7 of Order XXXIV of the First Schedule to the Code of Civil Procedure (Act V or 1908) and that the further balance, if any, shall be paid to the 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, the balance if legally recoverable otherwise than out of the property sold, be personally paid by defendant No. 1 to defendant No. 2.

Schedule

(Description of the mortgage property).”

Vide Kerala Gazette No, 3, Pt. II, G-347/S, dated 15th January, 1974.]

Andhra Pradesh.-Same as in Madras

Bombay.-In Appendix D, after Form No. 10, insert the following Form, namely:- ^ ”

No 10A

FINAL DECREE FOR SALE

(Title)

Upon reading the decree passed in the above suit on the ……………..day of 19…./20…., and the application of the plaintiff dated the …………..day of ……..,..19…../20……,and after hearing …………..pleader for the plaintiff and ……………..pleader for the defendant, and it appearing that the payment directed by the said decree has not been made:

It is hereby decreed as follows:- “^

(1) That the mortgaged property or a sufficient part thereof be sold and that the proceeds of the sale (after defraying thereout the expenses of the sale) be paid into Court and applied in payment of what is declared due to the plaintiff as aforesaid together with subsequent interest at………..per cent, per annum and subsequent costs, and that the balance if any, be paid to the defendant.

(2) That if the net proceeds of the sale are insufficient to pay such amount and such & subsequent interest and costs in full, the plaintiff shall be at liberty to apply for a K personal decree for the amount of the balance.”

Madras.-In Appendix D, after Form No 10, insert the following Forms, namely:- ”

No. 10A

FINAL DECREE FOR SALE

[Or. 34, R. 5(2) or Or. 34, R. 8(4)]

(Title)

Upon reading the preliminary decree passed in the above suit and the application of the plaintiff/defendant dated………..and upon hearing Mr……………….for plaintiff and Mr………..for defendant and it is appearing that the payment directed by the said decree has not been made;

It is hereby directed as follows:-

(1) that the mortgaged property or a sufficient part thereof be sold and the proceeds of the sale (after defraying thereout the expenses of the sale) be applied in payment of what is declared due to plain tiff/defendant in the aforesaid preliminary decree together with subsequent interest and subsequent costs and that the balance, if any, be paid to the defendant/plaintiff or other person entitled to receive it;

(2) that if the net proceeds of the sale are insufficient to pay such amount and such subsequent interest and costs in full the plaintiff/defendant be at liberty to apply for a personal decree for the amount of the balance; and

(3) that defendant/plaintiff do also pay plaintiff/defendant Rs………………for the costs of this application. (Here enter description of mortgaged property in English or in the language of the Court.)

Note.-(1) In the case of a decree under Order 34, Rule 5(2), score out the words plaintiff and defendant below the lines and in the case of a decree under Order 34, Rule 8(4), score out the same words occurring above the lines.

(2) direction No. (2) should be struck out if the personal liability has not been adjudicated in the suit or has been declared not to exist.

No. 10B

FINAL DECREE FOR REDEMPTION

[Or. 34, R. 3(1), Or. 34, R. 5(1) and Or. 34, R. 8(1)]

(Title)

Upon reading the preliminary decree in the above suit on …………..and the application of the plaintiff/defendant IA No…………………. dated………………..and after hearing Mr……………pleader for the …………..and Mr…………..,.pleader for the …………………and it is appearing that the payment directed by the aforesaid decree has been made:

 

It is hereby directed as follows:-

That the plaintiff/defendant to deliver up to the defendant/plaintiff or to such other person as he appoints all documents in his possession or power relating to the mortgaged property and do also re-transfer the property to the defendant/plaintiff free from the mortgage and from all encumbrances created by the plaintiff/ defendant or any person claiming under him (or by those under whom he claims) and do also put the defendant/plaintiff in possession of the property.

Schedule

Description of the mortgaged property

The costs of the defendant/plaintiff in these proceedings:-

Particulars Amount.

Note.-(1) In the case of a decree under Order 34, rule 8(1), score out the words plaintiff and defendant above the lines; in the case of a decree under Order 34, Rule 3(1) and Rule 5(1), score out the words plaintiff and defendant below the lines.

(2) The words “or by those under whom he claims” will be inserted only if the mortgagee derives title from an original mortgagee.”

No. 11

Preliminary Decree for Sale

[Plaintiff ……………………….. Sub or derivative mortgage vs.

Defendant No. 1 … ……………………….. Mortgagor,

Defendant No. 2 ……………………… Original Mortgagee.]

(Order XXXIV, Rule 4)

(Title)

This suit coming on this. …….. 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 th 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, or 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 incumbrances 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 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 ail documents, etc, [as in sub-clause (ii) of the 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 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. I

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

HIGH COURT AMENDMENT

Kerala.-In Appendix D, for Form No. 11, substitute the following Form, namely:-

NO. 11

DECREE FOR SALE

[Plaintiff……………………………………………………. Sub

or derivative mortgagee

Versus

Defendant No. 1 …………………………………………………………… Mortgagor Defendant No. 2 ………………………………………………….. Original Mortgagee]

(Order XXXIV, rule 4)

(Title)

The suit coming on this …………… 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 decree as follows:-

(i) that defendant No. 1 do pay into Court on or before the said day of …………… or any later date up to which time for payment may be extended by the Court the said sum of Rs …………… or 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, with interest if any 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 7 of Order XXXIV of the First Schedule to the Code of Civil Procedure (Act V of 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 his 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 sum declared due to the plaintiff together with subsequent costs of the suit and other costs, charges and expenses as may be payable under rule 7 of Order XXXIV of the First Schedule to the Code of Civil Procedure (Act V of 1908) be paid to him 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 in full the sum due to the plaintiff, the balance if legally recoverable otherwise than out of the property sold be personally paid by defendant No. 2 to the plaintiff. 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 defendants Nos. 1 and 2 as aforesaid 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 deducting therefrom the expenses of the sale) first in payment of the amount due to the plaintiff as specified in clause (i) of para 2 above with such costs of the suit and other costs, charges and expenses as may be payable under rule 7 of Order XXXIV of the First Schedule to the Code of Civil Procedure (Act V of 1908), and the balance, if any, shall be applied in payment of the amount due to the defendant No. 2; and that, if any further 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 balance, if legally recoverable otherwise than out of the property sold, be personally paid by defendant No. 2 or defendant No. 1 (as the case may be) to the plaintiff or defendant No. 2, or both of them as the case may be.

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. (i) (in the case of a mortgage by the conditional sale or an anomalous mortgage where the only remedy provided for in the mortgage deed is foreclosure and not sale) that the 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 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 purpose 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 (iii) [in the case where a sale is ordered under clause 7 (ii) above] that the money realised by such sale shall be paid into the Court and be duly applied (after deducting therefrom the expenses of the sale) in payment of the amount of payable to defendant No. 2 under the decree and any further orders that may be passed after decree and in payment of the amount with interest, if any, which the Court may have adjudged due to defendant No- 2 in respect of such costs of the suit and such costs, charges and expenses as may be payable under rule 7 of Order XXXIV of the First Schedule to the Code of Civil Procedure {Act V of 1908) and the balance, if any, shall be applied in payment of the amount due to the plaintiff and that if any balance be left, it shall be paid to 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 the balance, if legally recoverable otherwise than out of the property sold, be personally paid by defendant No. 1 to defendant No. 2.

Schedule (Description of the mortgaged property).

[Vide Kerala Gazette No. 3, Pt. III, G-347/S, dated 15th January, 1974.] :

No. 12

Decree for Rectification of Instrument

(Title)

It is hereby declared that the……. dated the……… day of……. 19….., does not truly express the intention of the parties to such ………. And it is decreed that the said…… rectified by……….

No. 13

Decree to Set aside a Transfer in Fraud of Creditors

(Title)

It is hereby declared that the………….. .dated the …….day of… .19….. .,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

Injunction against Building Higher that Old Level

(Title)

Let the defendant…., his contractors, agents and workmen, be perpetually restrained from continuing to erect upon his premises in…… 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 plaintiffs 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 any 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 account be taken of the legacies given by the testator’s 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 incumbrances (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 contacts 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……. .1shall 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 ……… 1to 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.]

1. Here insert name of proper officer.

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 plaintiffs 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 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 cost 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…….1of 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 CD., his wife, in her right as the sister and one of the next-of-kin of the said E.F., the instestate.

(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.

1. Here insert name of proper officer.

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 dissol vedl 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…… 1may, 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………….

1.Here insert name of proper officer.

No. 22

Final Decree in a Suit for Dissolution of Partnership and the Taking of Partnership Accounts

(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…….1amounting in 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 or Rs…… being the balance of the said sum of Rs…… due to him, which will then remain due.

1. Here insert name of proper officer.

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 of 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

HIGH COURT AMENDMENT

Andhra Pradesh.-Same as in Madras.

Kerala.-Same as in Madras.

Madras.-In Appendix D, after Form No. 23, insert the following Form, namely:- ”

No. 24

DECREE SANCTIONING A COMPROMISE OF A SUIT ON BEHALF OF A MINOR OR A LUNATIC

(Title)

This suit coming on this day for final disposal in the presence of etc., and CD. the defendant, a minor by E. F. his guardian ad litem applying that this suit may be compromised in the terms of an agreement in writing dated the… … … day of …. … … and made between A. B. the plaintiff, of the one part, and the said C D., by the said guardian ad litem of the other part, (or, on the terms hereafter set forth) and, it appearing to this Court that the said compromise is fit and proper and for the benefit of the said minor, this court both sanction the said compromise, on behalf of the said minor, and with the consent of all parties thereto: It is ordered as follows:- (Set out terms of the compromise)”

APPENDIX E. EXECUTION

No. 1

Notice to Show Cause Why a Payment or Adjustment should not be Recorded as Certified

(O 21,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……. 19 …….

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 deree-holder for executive of the decree.

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, of 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……. 19….

Judge

No. 4

Certificate of Non-Satisfaction of Decree

(O. 21, R. 6.)

(Title)

Certified that no1 satisfaction of the decree of this Court in suit No…….. of 19 …., a copy which is hereunto attached, has been obtained by execution within the jurisdiction of this Court. Dated the ……… day of……. 19 ….

Judge

1. If partial, strike out “no” and state to what extent.

No. 5

Certificate of Execution of Decree Transferred to Another Court

(O. 21, R. 6)

(Title)

Table no. 5 Link

Signature of Maharir incharge

Signature of Judge

No. 6

Application for Execution of Decree

(0.21.R. 11)

In the Court of

I……. decree-holder, hereby apply for execution of the decree herein-below set forth:

Table no. 6 link

I……. declare that what is stated herein is true to the best of my knowledge and belief.

Signed……………….. decree-holder

Dated the ……… day of……. 19 …..

[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

HIGH COURT AMENDMENT

Patna.-In Appendix E, in Form No. 6, in column 6, in heading, after the word “date” insert the words “, date of final order passed on it”.

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 19 …… on the allegation that the said decree has transferred to him by assignment 1 [or without assignment], this is to give you notice that you are to appear before this Court ……. on the ……… day of……. 19 …., to show cause why execution should not be granted.

Given under my hand and the seal of the Court, this ……… day of……. 19 ….

Judge.

1. Ins. by Act No. 104 of 1976, (w.e.f. 1-2-1977).

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,

Whereas ……. was ordered by decree of this Court passed on the day of…….19 … .. in Suit No. ……. of 19 …….. to oav 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 costs of this attachment, to hold the same until further orders from this Court.

Decree
Principal
Interest
Costs
Cost of execution
Further interest

You are further commanded to return this warrant on or before the ……… day of……. 19…., 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……. 19 ….,

Schedule

Judge.

HIGH COURT AMENDMENTS

Allahabad.-In Appendix E, in Form No. 8, between the words “command you to attach” and the words “the movable property of the said”, insert the words “on or before the day of

Andhra Pradesh.-Same as in Allahabad.

Kerala.-In Appendix E, in Form No. 8,-

(i) for the word ‘Bailiff, substitute the word “Amin.

(ii) between the words “command you to attach” and the words “the movable property” insert the words “on or before the day of…………….”

Madras.-Same as in Allahabad. ..

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……. 19 ….. in Suit No…….. of 19…., 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 this behalf. Given under my hand and the seal of the Court, this……… day of……. 19 ….,

Schedule

Judge.

HIGH COURT AMENDMENT

Kerala.-In Appendix E, in Form 9, for the word “Bailiff”, substitute the word “Amin”. (w.e.f. 9-6-1959}

No. 10

Notice to State Objections to Draft of Document

(O. 21.R.34)

(Title)

To

Take notice that on the ……… day of……. 19 ………… 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……. 19 …., 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……. 19 ….,

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 under mentioned 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……. 19…..

Schedule

Judge.

HIGH COURT AMENDMENT

Kerala.-In Appendix E, in Form No. 11, for the word “Bailiff”, substitute the word “Amin”. (w.e.f. 9-6-1959)

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 19 …… by arrest and imprisonment of your person, you are hereby required to appear before this Court on the ……… day of……. 19 …., 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……. 19….,

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 the Court in suit No. …… of 19 .. . ., dated the ……… day of ……. 19 … ., 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 judgment-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.

Decree
Principal
Interest
Costs
Cost of execution
Further interest

You are further commanded to return this warrant on or before the …………. Day of ……19 …….., 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 any hand and the seal of the Court, this ………….. day of ……….. 19……….,

HIGH COURT AMENDMENTS

Kerala.-In Appendix E, in Form No. 13, for the word “Bailiff, substitute the word “Amin”. (w.e.f. 9-6-1959).

No. 14

Warrant of Commital of Judgment-Debtor to Jail

(O.21, R.40)

(Title)

To

The Officer in charge of the Jail at

Whereas ……. who has been brought before this Court this ……… day of…….. . 19…., under a warrant in execution of a decree which was made and pronounced by the said Court on the……… day of……. 19 …., 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 1 [* * * ]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 hand and the seal of the Court, this ….. day of……… 19….,

Judge.

1. The word “annas” omitted by Act No. 104 of 1976, (w.e.f. 1-2-1917).

HIGH COURT AMENDMENTS

Andhra Pradesh.-Same as in Madras.

Kerala.-Same as in Madras with the following changes:-

(i) for the word “Bailiff”, substitute the word “Arnin”.

(ii) for the words “Central Nazir”, substitute the word “Nazir”. (w.e.f. 9-6-1959)

Madras.-In Appendix E, after Form 14, insert the following Form, namely:-

“No. 14A
ORDER OF ENTRUSTMENT OF JUDGMENT-DEBTOR TO THE CUSTODY OF AN OFFICER OF COURT

[Order XXI, rule 40, sub rule (2) and the proviso to sub-rule (3)]

IN THE COURT OF THE …………………… OF ……….

To

The Bailiff of the Court.

WHEREAS…………………… who has been brought before this Court, …. …… this ……….. day of ………19…./20…., under warrant in execution of a decree which was made and pronounced by said Court on the ……………….. day of…… 19…./20…./ and by which decree, it was ordered that the said judgment-debtor should pay Rs………..

And whereas the judgment-debtor has been ordered to be kept in the custody of an officer of the Court pending the enquiry under Order XXI, rule 40, sub-rule (2).

And whereas the said judgment-debtor has to be given an opportunity of satisfying the decree and for this end this Court is of opinion that the said judgment-debtor may be left in the custody of an officer of Court.

You are hereby, commanded and required to take and receive the said judgment-debtor into your custody and keep him in that custody for period of…………… days or until further orders of this Court. You are hereby further informed that he is not to be allowed to go anywhere except in your company. You are further required to produce the said judgment-debtor before this Court at the expiration of the period specified, if the decree be no sooner satisfied.

GIVEN under my hand and the seal of the Court this……….. day of ……..19 ,…/20…. .

(By Order)

Central Nazir”

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.

HIGH COURT AMENDMENTS

Andhra Pradesh.-Same as in Madras.

Calcutta,-In Appendix E, after Form No. 15, insert the following Form, namely:-

“No. 15A
BOND FOR SAFE CUSTODY OF MOVABLE PROPERTY ATTACHED AND LEFT IN CHARGE OF ANY PERSONS AND SURETIES [Order XXIA, rules 3 (a) and 5]

IN THE COURT OF……………………….. AT………………..

Civil Suit No………………………… of ……………….

A.B. of……;………………………………………………………………………………………………..

Against

C.D.

of………………………………………………………………………………………………………

Known all men by these persons that we, I, J. of, etc. and K.L. of……………….. etc. and M.N. of………………….etc., are jointly and severally bound to the Judge of the Court of …………….. in Rupees…………….. to be paid to the said Judge, 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 ……………… 19…./20…. .

And whereas the movable property/livestock specified in the Schedule hereunto annexed has been attached under a warrant from the said Court dated the …………… day of…….. 19 …./20…., in execution of a decree in favour of …………….in Suit No ………….. of…………19 …./20…., on the file of …………………….. and the said property has been left in the charge of the I.J.

Now the condition of this obligation is that if the above bounded I.J. (shall duly account for any loss which the owner of the property) livestock may suffer due to wilful negligence of the bounded and produce when required before the said Court all and every the property/ livestock aforesaid (and shall properly maintain and take due care of the livestock aforesaid) and shall obey any further order of the Court in respect then this obligation shall be void; otherwise it shall remain in full force and be enforceable against the above bounded I.J. in the execution proceedings.

I.J.

K.L.

M.N.

Signed and delivered by the above bounden in the presence of… … … ”

(w.e.f. 3-11-1933 and 29-5-1941)

Gauhati.-Same as in Calcutta.

Himachal Pradesh.-Same as in Punjab and Haryana. (w.e.f. 7-8-1959).

Karnataka.-Same as in Madras.

Kerala.-Same as in Madras, (w.e.f. 9-6-1959)

Madras.-In Appendix E, in Form 15,-

(i) for the word “Dated” substitute the words “Given under my hand and the seal of the Court, this day of…………”:

(ii) after Form No. 15, insert the following Form, namely:-

“No. 15A
BOND FOR SAFE CUSTODY OF MOVABLE PROPERTY ATTACHED AND LEFT IN CHARGE OF PERSON INTERESTED AND SURETIES
(Order XXI, rule 43)

IN THE COURT OF……………………….. AT………………..

Civil Suit No………………………… of …….. 19…./20…. ”

A.B.

of……………………………………………………………………………………………………..

Against

CD.

of………………………………………………………………………………………………………

Know all men by these persons that we I.J. of, etc, and K.L. of, etc. and M.N. of, etc., are jointly and severally bound to the Judge of the Court of in rupees to be paid to the said Judge, 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……………. 19…./20….

And whereas the movable property specified in schedule hereunto annexed has been attached under a warrant from the said Court, dated the………. day of ……….. 19…./20…., is execution of a decree in favour of……… in Suit No …… of……. 19…./20…, on the file of ……….. and the said property has been left in the charge of the said I.J.

Now the condition of this obligation is that, if the above bounded I.J. shall duly account for and produce when required before the said Court all and every property aforesaid and shall obey any further order of the Court in respect thereof, then this obligation shall be void, otherwise it shall remain in full force.

I.J.

K.L.

M.N.

Signed and delivered by the above bounden in the presence of …………….”

[Vide Dis. No. 116 of 1913.]

Punjab and Haryana.-In Appendix E, after Form No. 15, insert the following Forms, namely:-

“No. 15A
BOND FOR SAFE CUSTODY OF MOVABLE PROPERTY ATTACHED AND LEFT IN CHARGE OF PERSON INTERESTED AND SURETIES
(Order XXI, rule 43)

IN THE COURT OF……………………… AT………………..

Civil Suit No………………………… of …….. 19…./20….

A.B. of ………………………………………………………………………………………………………

Against

CD. of ……………………………………………………………………………………………….

Know all men by these presents that we, I.J. of………… etc., ….. …. and K.L. of………….. etc., and M..N……….. etc., are……….. jointly and severally bound to the Judge of the Court of ……… in Rupees ………. to be paid to the said Judge, 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 present.

Dated this ……………… day of ………19…./20…. .

And whereas the movable property specified in the Schedule hereunto annexed has been attached under a warrant from the said Court, dated the ……….. day of ……….. 19…./20…., in the of a decree in favour of …………. in Suit No ………. of ……19…./20…., on the file of… … and the said property has been left in the charge of the said I.J.

Now, the condition of this obligation is that, if the above bounden I.J. shall duly accounts for and produce when required before the said Court all and every property aforesaid and shall obey and further order of the Court in respect thereof, then this obligation shall be void; otherwise it shall remain in hill force.

I.J.

K. L.

M.N.

Signed and delivered by the above bounden in the presence of…………… “:

No. 15B
BOND FOR SAFE CUSTODY OF MOVABLE PROPERTY ATTACHED AND LEFT IN CHARGE OF ANY PERSON AND SURETIES
[Order XXI, rule 43(1)(c}]

IN THE COURT OF……………………….. AT………………..

Civil Suit No…………………….. of …….. 19…/20….

A.B.

of………………………………………………………………………………………………………

Against

CD. of ……………………………………………………………………………

Know all men by these presents that, we I.J, of …. …. etc., and K.L. of ………. etc., and M.N. of ……….. etc., are jointly and severally bound to the judge of the Court of ……… in Rupees …………….. to be paid to the said judge 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 …….19…./20….

And whereas the movable property specified in the Schedule hereunto annexed has been attached under a warrant from the said Court, dated the …………. day of…………l9…./20…., in execution of a decree in favour of ……….. in Suit No ………….. of ….. 19…./20…., on the file of……… and the said property has been left in the charge of the said I.J.

Now the condition of this obligation is that, if the above bounden I.J, shall duly account for and produce when required before the said Court all and every property aforesaid and shall obey any further order of the Court in respect thereof, then this obligation shall be void; otherwise it shall remain in full force and be enforceable against the above bounden I.J. in accordance with the procedure laid down in section 145, Civil Procedure Code, as if the aforesaid I.J. were a surety for the restoration of property taken in execution of a decree.

I..J.

K.L.

M.N.

Signed and delivered by the above bounden in the presence of……”

Rajasthan.-Same as in Punjab.

[Vide No. 8/S. R. C. Jodhpur, dated 23rd December, 1964.]

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……. 19 ….. in Suit No………… of 19 …… 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 the Court, this ……… day of……. 19 ….,

Judge.

1[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

*3.1 am married/single/widower (widow)/divorced

4. The following persons are dependant 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(d) House property;

(e) Other property;

(f) Other securities;

Give particulars.

9. The following debts are due to me:-

(give particulars)

(a) Form ……. of ………………………

Rs.

(b) From …….of ………………………

Rs……. .(etc.)

Sworn before me, etc.]

1. Ins. by Act 104 of 1976 (w.e.f. 1.2.1977).

Strike off the words which are not applicable.

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……… 19…, in Suit No. ……… of 19…….. in favour of 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 19 …

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 … had failed to satisfy a decree passed against… on the … day of… 19 …, in Suit No. ……… of 19 …… 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 the Court, from making any 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 …….. 19…..

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 officer 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….. 19…

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……… 19 …, 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……… 19…

Judge.

HIGH COURT AMENDMENT

Kerala.-In Appendix E, in Form No. 20, for the word “Bailiff”, substitute the word “Amin”. (w.e.f. 9-6-1959)

No. 21

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 your hands (here state how the money is supposed to be in the hands of the person addressed, on what account, etc.), I request thai 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.

Judge.

Dated the ……… day of……… 19…

No. 22

Notice of Attachment of a Decree to the Court which Passed it

(O. 21, R. 52.)

(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……… 19… by ……… in Suit No. ……… of 19…, 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 o the decree now sought to be executed or by his judgment-debtor.

I have the honour, etc.

Judge

Dated the ……… day of… 19…

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…….. 19…, in the Court of……… in Suit No. … …. of 19 …. 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……… 19…

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. …….. 19….., in Suit No……. of 19…, 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 the Court, from transferring or charging the property specified in the schedule hereunto annexed, by sale, gift or otherwise, and that all person be, and that they are hereby, prohibited from receiving the same by purchase, gift or otherwise.

1 [fit is also ordered that you should attend Court on the ……… day of……… 19.. to take notice of the date fixed for setting the terms of the proclamation of sale.]

Given under my hand and the seal of the Court, this……… day of……. 19……

Schedule

Judge.

1. Ins. by Act No. 104 of 1976 (w.e.f. 1.2.1977).

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……… 19 …, passed on the ……… day of……… 19…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…. 19 …

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……… 19…, this is to give you notice to appear before this Court on ………. the ………day of……… 19…. 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……… 19…

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……… days’ 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. . . 19…,in execution of a decree in favour of ……… in Suit No. ……… of 19 …, 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….19…, 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……… 19 …

Judge.

HIGH COURT AMENDMENTS

Kerala.-In Appendix E, in Form 27, for the word “Bailiff, substitute the word “Amin”. (w.e.f. 9-6-1959)

Madras.-In Appendix E, re-number Form No. 27 as Form No. 28 and insert the following Form, namely:-

“No. 27
NOTICE OF SALE
(O. XXI, r. 64)
(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 ………… 19…./20…., has been fixed for settling the terms of proclamation of sale.

Given under my hand and the seal of the Court this ………………. day of ……… 19…./20….

Judge.”

No. 28

Notice of the Day Fixed for Setting 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…….. 19 …., has been affixed for setting the terms of the proclamation of sale.

Given under my hand and the seal of the Court, this ……… day of……… 19….

Judge.

HIGH COURT AMENDMENT

Madras.-In Appendix E, renumber Form No. 28, as Form No. 28A.

No. 29

Proclamation of Sale

(O.21.R.66)

(Title)

(1) Suit No….. of 19…, 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 lo 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 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 purchaser-money to the officer conducting the sale, and in default of such deposit the property and 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…….. 19….

Judge.

Schedule of Property

1. Ins. by Act No. 104 of 1976 (w.e.f. 1-2-1977).

HIGH COURT AMENDMENTS

Allahabad.-In Appendix E, in Form 29, in the paragraph above the sub-heading “Conditions of sale” omit the words “No bid by, or on behalf of, the judgment-creditors above-mentioned, however, will be accepted, nor will sale to them be valid without the express permission of the Court previously given”, {w.e.f. 29-1-1927).

Andhra Pracfesh.-Same as in Madras.

Kerala.-Same as in Madras, (w.e.f. 9-6-1959)

Madras.-In Appendix E, in Form No. 29, at the end, insert the following Note, namely:-

“Note.-

The title-deeds relating to the property have not been filed in Court, and the purchaser will take the property subject to the risk of there being mortgages by deposit of title-deeds, or mortgages not disclosed in the encumbrance certificate.”

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….. 19…, 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…… . 19…

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……….. purchase, 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 ……… 19…

Officer 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 . . ….. 19 …,

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 of or person except the said…..

Given under my hand and the seal of the Court, this .. ……. day of……… 19

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…….. 19 ….

Judge.

No. 35

Certificate to Judgment-debtor Authorising him to Mortgage Lease or Sell Property

(O. 21, R. 83)

(Title)

Whereas in execution of the decree passed in the above suit an order was made on the .. ……. day of……… 19…, 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 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……… 19….

Description of property

Judge.

No. 36

Notice to Show Cause Why Sale should not be Set Aside

(O. 21, R. 90, 92)

(Title)

To

Whereas the under-mentioned property was sold on the …… day of……… 19 ….in execution of the decree passed in the above named suit, and whereas………. the decree-holder [or judgement-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……..19 …, when the said application will be heard and determined.

Given under my hand and the seal of the Court, this ……… day of……… 19 …

Description of property

Judge.

No. 37

Notice to Show Cause Why Sale should not be Set Aside

(O. 21, R. 91, 92)

(Title)

To

Whereas………. the purchaser of the under-mentioned property sold on …….. the day of……… 19…, 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……… 19 …., when the said application will be heard and determiend.

Given under my hand and the seal of the Court, this ……… day of……… 19 …

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….. 19…, of…. in execution of decree in this suit, 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……… 19….

Judge.

HIGH COURT AMENDMENTS

Allahabad.-In Appendix E, in Form No. 38, in the heading, for the word “LAND” substitute the words “IMMOVABLE PROPERTY”.

Bombay.-In Appendix E, for Form No. 38, substitute the following Form, namely :-

“No. 38
CERTIFICATE OF SALE OF LAND
(O. XXI, r. 94)
(Title)

This is to certify that ……………. has been declared the purchaser for Rs…………….. at a sale by public auction on the ……… day of ………. 19…./20…., of ……….. in execution of decree in this suit, 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……… 19…./20…. . Judge”.

[Vide PO/102/77, dated 15th September, 1983 (w.e.f. 1-10-1983).]

Kerala.-In Appendix E, in Form No. 38, at the end, insert the following:-

“SCHEDULE

(w.e.f. 9-64959)

Madhya Pradesh.-In Appendix E, in Form No. 38, between the words “the purchaser” and “at a sale”, insert the words “For Rs. ……………”.

Orissa.-Same as in Patna.

Patna.-In Appendix E, for Form No. 38, substitute the following Form, namely :-

“No. 38
CERTIFICATE OF SALE OF LAND
(O. XXI, r. 94)

District……………………………………………………………………..

In the Court of………………….. at ………………………………Execution of case No. ………………. of ………… 19…./20…. .

…………………………………………………………………. Decree-holder

Versus

…………………………………………………………………. Judgment debtor

This is to certify that…………… son of …………… by caste …………… by occupation …… resident of Thana ………………… District…………………….. has been declared the purchaser at a sale by public auction on the ……………………. day of ……………… 19…./20…….., of the property specified below in execution of the decree in Suit No. ………….. of this Court and that the said sale has been duly confirmed this Court.

Given under my hand and the seal of the Court, this ………………. day of …………… 19…./20…..

Specification and price of properties

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……… 19…; 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……… 19…

Judge.

HIGH COURT AMENDMENTS

Andhra Pradesh.-Same as in Madras.

Kerala-In Appendix E, in Form No. 39, for the word “Bailiff”, substitute the word “Amin”. (w.e.f. 9-6-1959)

Madras.-In Appendix E, in Form No. 39, substitute the following Form, namely:-

“No. 39
ORDER FOR DELIVERY TO CERTIFIED PURCHASER OF LAND AT A SALE IN EXECUTION

(O. XXI, 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 …………. 19,…/20..,., you are hereby ordered to put the …………… said ………. the certified purchaser as aforesaid, in possession of the same; and you are hereby further required to state in your return whether there are crops on the land and whether you have delivered them to ……………… the certified purchaser.

Given under my hand and the seal of the Court this …………… day of …………… 19….720….

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… … 19…..,at…. a.m., to answer the said complaint.

Given under my hand and the seal of the Court, this . . . day of ……… 19. ..

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 he 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 …… 19 …

Judge.

No. 42

Authority of the Collector to Stay Public Sale of Land

(Section 72)

(Title)

To

Collector of……………………………….

Sir,

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.

HIGH COURT AMENDMENTS

Allahabad.-In Appendix E, after Form No. 42, insert the following Form, namely:-

“No. 43

The security to be furnished under section 55 (4) shall be, as nearly as may be, by a bond in the following form:

In the Court of………….. at ………………. Suit No ……….. of …………… 19…./20….

A.B. of…………………………………………………………………………………………..

Plaintiff

against

C. D. of ……………………………………………………………………………………..

Defendant.

Whereas in execution of the decree in the suit aforesaid the said C. D. has been arrested, under a warrant and brought before the Court of ……. and whereas the said C. D. has applied for his discharge on the ground that he undertakes within one month to apply under section 5 of Act No. III of 1907, to be declared an insolvent and the said Court has ordered that the said C. D. shall be released from custody if the said C. D. furnished good and sufficient security in the sum of Rs …………… that he will appear when called upon and that he will, within one month from this date apply under section 5 of Act III of 1907 to be declared an insolvent.

Therefore, 1. E. F. inhabitant of …………have voluntarily become security, and do hereby bind myself, my heirs, and executors to………………as Judge of the said Court and his successors-in office that the said C D. will appear at any time when called upon by the said Court, and will apply in the manner and within the time here-in-before set forth, and in default of such appearance or of such application, I bind myself, may heirs and executors, to pay to the said Court on its order, the sum of Rs ……………..

Witness my hand at this …………………. day of ………………… 19…./20…. . -^r^Q ^n’t

Witnesses:

APPENDIX E. EXECUTION

No. 1

Notice to Show Cause Why a Payment or Adjustment should not be Recorded as Certified

(O 21,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……. 19 …….

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 deree-holder for executive of the decree.

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, of 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……. 19….

Judge

No. 4

Certificate of Non-Satisfaction of Decree

(O. 21, R. 6.)

(Title)

Certified that no1 satisfaction of the decree of this Court in suit No…….. of 19 …., a copy which is hereunto attached, has been obtained by execution within the jurisdiction of this Court. Dated the ……… day of……. 19 ….

Judge

1. If partial, strike out “no” and state to what extent.

No. 5

Certificate of Execution of Decree Transferred to Another Court

(O. 21, R. 6)

(Title)

Table no. 5 Link

Signature of Maharir incharge

Signature of Judge

No. 6

Application for Execution of Decree

(0.21.R. 11)

In the Court of

I……. decree-holder, hereby apply for execution of the decree herein-below set forth:

Table no. 6 link

I……. declare that what is stated herein is true to the best of my knowledge and belief.

Signed……………….. decree-holder

Dated the ……… day of……. 19 …..

[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

HIGH COURT AMENDMENT

Patna.-In Appendix E, in Form No. 6, in column 6, in heading, after the word “date” insert the words “, date of final order passed on it”.

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 19 …… on the allegation that the said decree has transferred to him by assignment 1 [or without assignment], this is to give you notice that you are to appear before this Court ……. on the ……… day of……. 19 …., to show cause why execution should not be granted.

Given under my hand and the seal of the Court, this ……… day of……. 19 ….

Judge.

1. Ins. by Act No. 104 of 1976, (w.e.f. 1-2-1977).

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,

Whereas ……. was ordered by decree of this Court passed on the day of…….19 … .. in Suit No. ……. of 19 …….. to oav 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 costs of this attachment, to hold the same until further orders from this Court.

Decree
Principal
Interest
Costs
Cost of execution
Further interest

You are further commanded to return this warrant on or before the ……… day of……. 19…., 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……. 19 ….,

Schedule

Judge.

HIGH COURT AMENDMENTS

Allahabad.-In Appendix E, in Form No. 8, between the words “command you to attach” and the words “the movable property of the said”, insert the words “on or before the day of

Andhra Pradesh.-Same as in Allahabad.

Kerala.-In Appendix E, in Form No. 8,-

(i) for the word ‘Bailiff, substitute the word “Amin.

(ii) between the words “command you to attach” and the words “the movable property” insert the words “on or before the day of…………….”

Madras.-Same as in Allahabad. ..

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……. 19 ….. in Suit No…….. of 19…., 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 this behalf. Given under my hand and the seal of the Court, this……… day of……. 19 ….,

Schedule

Judge.

HIGH COURT AMENDMENT

Kerala.-In Appendix E, in Form 9, for the word “Bailiff”, substitute the word “Amin”. (w.e.f. 9-6-1959}

No. 10

Notice to State Objections to Draft of Document

(O. 21.R.34)

(Title)

To

Take notice that on the ……… day of……. 19 ………… 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……. 19 …., 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……. 19 ….,

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 under mentioned 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……. 19…..

Schedule

Judge.

HIGH COURT AMENDMENT

Kerala.-In Appendix E, in Form No. 11, for the word “Bailiff”, substitute the word “Amin”. (w.e.f. 9-6-1959)

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 19 …… by arrest and imprisonment of your person, you are hereby required to appear before this Court on the ……… day of……. 19 …., 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……. 19….,

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 the Court in suit No. …… of 19 .. . ., dated the ……… day of ……. 19 … ., 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 judgment-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.

Decree
Principal
Interest
Costs
Cost of execution
Further interest

You are further commanded to return this warrant on or before the …………. Day of ……19 …….., 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 any hand and the seal of the Court, this ………….. day of ……….. 19……….,

HIGH COURT AMENDMENTS

Kerala.-In Appendix E, in Form No. 13, for the word “Bailiff, substitute the word “Amin”. (w.e.f. 9-6-1959).

No. 14

Warrant of Commital of Judgment-Debtor to Jail

(O.21, R.40)

(Title)

To

The Officer in charge of the Jail at

Whereas ……. who has been brought before this Court this ……… day of…….. . 19…., under a warrant in execution of a decree which was made and pronounced by the said Court on the……… day of……. 19 …., 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 1 [* * * ]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 hand and the seal of the Court, this ….. day of……… 19….,

Judge.

1. The word “annas” omitted by Act No. 104 of 1976, (w.e.f. 1-2-1917).

HIGH COURT AMENDMENTS

Andhra Pradesh.-Same as in Madras.

Kerala.-Same as in Madras with the following changes:-

(i) for the word “Bailiff”, substitute the word “Arnin”.

(ii) for the words “Central Nazir”, substitute the word “Nazir”. (w.e.f. 9-6-1959)

Madras.-In Appendix E, after Form 14, insert the following Form, namely:-

“No. 14A
ORDER OF ENTRUSTMENT OF JUDGMENT-DEBTOR TO THE CUSTODY OF AN OFFICER OF COURT

[Order XXI, rule 40, sub rule (2) and the proviso to sub-rule (3)]

IN THE COURT OF THE …………………… OF ……….

To

The Bailiff of the Court.

WHEREAS…………………… who has been brought before this Court, …. …… this ……….. day of ………19…./20…., under warrant in execution of a decree which was made and pronounced by said Court on the ……………….. day of…… 19…./20…./ and by which decree, it was ordered that the said judgment-debtor should pay Rs………..

And whereas the judgment-debtor has been ordered to be kept in the custody of an officer of the Court pending the enquiry under Order XXI, rule 40, sub-rule (2).

And whereas the said judgment-debtor has to be given an opportunity of satisfying the decree and for this end this Court is of opinion that the said judgment-debtor may be left in the custody of an officer of Court.

You are hereby, commanded and required to take and receive the said judgment-debtor into your custody and keep him in that custody for period of…………… days or until further orders of this Court. You are hereby further informed that he is not to be allowed to go anywhere except in your company. You are further required to produce the said judgment-debtor before this Court at the expiration of the period specified, if the decree be no sooner satisfied.

GIVEN under my hand and the seal of the Court this……….. day of ……..19 ,…/20…. .

(By Order)

Central Nazir”

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.

HIGH COURT AMENDMENTS

Andhra Pradesh.-Same as in Madras.

Calcutta,-In Appendix E, after Form No. 15, insert the following Form, namely:-

“No. 15A
BOND FOR SAFE CUSTODY OF MOVABLE PROPERTY ATTACHED AND LEFT IN CHARGE OF ANY PERSONS AND SURETIES [Order XXIA, rules 3 (a) and 5]

IN THE COURT OF……………………….. AT………………..

Civil Suit No………………………… of ……………….

A.B. of……;………………………………………………………………………………………………..

Against

C.D.

of………………………………………………………………………………………………………

Known all men by these persons that we, I, J. of, etc. and K.L. of……………….. etc. and M.N. of………………….etc., are jointly and severally bound to the Judge of the Court of …………….. in Rupees…………….. to be paid to the said Judge, 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 ……………… 19…./20…. .

And whereas the movable property/livestock specified in the Schedule hereunto annexed has been attached under a warrant from the said Court dated the …………… day of…….. 19 …./20…., in execution of a decree in favour of …………….in Suit No ………….. of…………19 …./20…., on the file of …………………….. and the said property has been left in the charge of the I.J.

Now the condition of this obligation is that if the above bounded I.J. (shall duly account for any loss which the owner of the property) livestock may suffer due to wilful negligence of the bounded and produce when required before the said Court all and every the property/ livestock aforesaid (and shall properly maintain and take due care of the livestock aforesaid) and shall obey any further order of the Court in respect then this obligation shall be void; otherwise it shall remain in full force and be enforceable against the above bounded I.J. in the execution proceedings.

I.J.

K.L.

M.N.

Signed and delivered by the above bounden in the presence of… … … ”

(w.e.f. 3-11-1933 and 29-5-1941)

Gauhati.-Same as in Calcutta.

Himachal Pradesh.-Same as in Punjab and Haryana. (w.e.f. 7-8-1959).

Karnataka.-Same as in Madras.

Kerala.-Same as in Madras, (w.e.f. 9-6-1959)

Madras.-In Appendix E, in Form 15,-

(i) for the word “Dated” substitute the words “Given under my hand and the seal of the Court, this day of…………”:

(ii) after Form No. 15, insert the following Form, namely:-

“No. 15A
BOND FOR SAFE CUSTODY OF MOVABLE PROPERTY ATTACHED AND LEFT IN CHARGE OF PERSON INTERESTED AND SURETIES
(Order XXI, rule 43)

IN THE COURT OF……………………….. AT………………..

Civil Suit No………………………… of …….. 19…./20…. ”

A.B.

of……………………………………………………………………………………………………..

Against

CD.

of………………………………………………………………………………………………………

Know all men by these persons that we I.J. of, etc, and K.L. of, etc. and M.N. of, etc., are jointly and severally bound to the Judge of the Court of in rupees to be paid to the said Judge, 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……………. 19…./20….

And whereas the movable property specified in schedule hereunto annexed has been attached under a warrant from the said Court, dated the………. day of ……….. 19…./20…., is execution of a decree in favour of……… in Suit No …… of……. 19…./20…, on the file of ……….. and the said property has been left in the charge of the said I.J.

Now the condition of this obligation is that, if the above bounded I.J. shall duly account for and produce when required before the said Court all and every property aforesaid and shall obey any further order of the Court in respect thereof, then this obligation shall be void, otherwise it shall remain in full force.

I.J.

K.L.

M.N.

Signed and delivered by the above bounden in the presence of …………….”

[Vide Dis. No. 116 of 1913.]

Punjab and Haryana.-In Appendix E, after Form No. 15, insert the following Forms, namely:-

“No. 15A
BOND FOR SAFE CUSTODY OF MOVABLE PROPERTY ATTACHED AND LEFT IN CHARGE OF PERSON INTERESTED AND SURETIES
(Order XXI, rule 43)

IN THE COURT OF……………………… AT………………..

Civil Suit No………………………… of …….. 19…./20….

A.B. of ………………………………………………………………………………………………………

Against

CD. of ……………………………………………………………………………………………….

Know all men by these presents that we, I.J. of………… etc., ….. …. and K.L. of………….. etc., and M..N……….. etc., are……….. jointly and severally bound to the Judge of the Court of ……… in Rupees ………. to be paid to the said Judge, 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 present.

Dated this ……………… day of ………19…./20…. .

And whereas the movable property specified in the Schedule hereunto annexed has been attached under a warrant from the said Court, dated the ……….. day of ……….. 19…./20…., in the of a decree in favour of …………. in Suit No ………. of ……19…./20…., on the file of… … and the said property has been left in the charge of the said I.J.

Now, the condition of this obligation is that, if the above bounden I.J. shall duly accounts for and produce when required before the said Court all and every property aforesaid and shall obey and further order of the Court in respect thereof, then this obligation shall be void; otherwise it shall remain in hill force.

I.J.

K. L.

M.N.

Signed and delivered by the above bounden in the presence of…………… “:

No. 15B
BOND FOR SAFE CUSTODY OF MOVABLE PROPERTY ATTACHED AND LEFT IN CHARGE OF ANY PERSON AND SURETIES
[Order XXI, rule 43(1)(c}]

IN THE COURT OF……………………….. AT………………..

Civil Suit No…………………….. of …….. 19…/20….

A.B.

of………………………………………………………………………………………………………

Against

CD. of ……………………………………………………………………………

Know all men by these presents that, we I.J, of …. …. etc., and K.L. of ………. etc., and M.N. of ……….. etc., are jointly and severally bound to the judge of the Court of ……… in Rupees …………….. to be paid to the said judge 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 …….19…./20….

And whereas the movable property specified in the Schedule hereunto annexed has been attached under a warrant from the said Court, dated the …………. day of…………l9…./20…., in execution of a decree in favour of ……….. in Suit No ………….. of ….. 19…./20…., on the file of……… and the said property has been left in the charge of the said I.J.

Now the condition of this obligation is that, if the above bounden I.J, shall duly account for and produce when required before the said Court all and every property aforesaid and shall obey any further order of the Court in respect thereof, then this obligation shall be void; otherwise it shall remain in full force and be enforceable against the above bounden I.J. in accordance with the procedure laid down in section 145, Civil Procedure Code, as if the aforesaid I.J. were a surety for the restoration of property taken in execution of a decree.

I..J.

K.L.

M.N.

Signed and delivered by the above bounden in the presence of……”

Rajasthan.-Same as in Punjab.

[Vide No. 8/S. R. C. Jodhpur, dated 23rd December, 1964.]

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……. 19 ….. in Suit No………… of 19 …… 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 the Court, this ……… day of……. 19 ….,

Judge.

1[No. 16A

Civil Procedure Code 1908 – 1st Page
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